Federal Court of Australia

Forrest on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia (No 2) [2025] FCA 547

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 66B of the Native Title Act 1993 (Cth), Verna Vos, Graham Edwards, Ivan Fraser, Maria Meredith and Elton Polak shall replace the current applicant.

2.    There be leave to the applicant to amend its native title determination application in the terms set out at Annexure JMB1 to the affidavit of Jeremy Michael Brown affirmed 3 April 2025.

3.    On or before 30 May 2025, the applicant file an amended application in the terms of the leave given by order 2.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In 2018, Mr Kalman Murphy and others on behalf of the Waturta Native Title Claim Group applied for a determination that native title exists in respect of land in the area of Lake Wells within the Shire of Laverton (Waturta Claim). Almost six months later, an application for a determination of the existence of native title that overlapped and extended beyond the area of the Waturta Claim was brought by Mr Ivan Forrest and others on behalf of the Tjalkadjara Native Title Claim Group (Tjalkadjara Claim). Each person comprising the applicant in the Waturta Claim is also named as a respondent to the Tjalkadjara Claim.

2    The two competing applications are being case managed together. Following unsuccessful attempts at mediation, hearing dates in late October this year have been set for receiving all lay evidence from Aboriginal witnesses relied upon in support of the applications, as well as lay evidence in support of an application to adjoining land brought by Mr Kado Muir and others on behalf of the Payarri People.

3    The Tjalkadjara Claim applicant has brought an interlocutory application seeking:

(1)    an order under s 66B of the Native Title Act 1993 (Cth) replacing the persons comprising the Tjalkadjara Claim applicant; and

(2)    leave to amend the claim group description in the Form 1 application,

(Application).

The Tjalkadjara statement of facts, issues and contentions

4    Before the Court at the time of hearing the Application was a separate interlocutory application by the Tjalkadjara Claim applicant for leave to amend its statement of facts, issues and contentions (SFIC).

5    The SFIC was dated 28 February 2025. It included the following statement:

The Tjalkadjara claim group met on 18 and 19 February 2025 in Kalgoorlie, and authorised the making of amendments to the Tjalkadjara Form 1. As at the date of the filing of this Tjalkadjara SFIC, the claim authorised to be made by the Tjalkadjara claim group differs from the claim set out in the Tjalkadjara Form 1. The Tjalkadjara Applicant proposes to seek leave to amend the Tjalkadjara Form 1 in due course and expeditiously. The present Tjalkadjara SFIC reflects the most recent authorisation of the Tjalkadjara Applicant by the Tjalkadjara claim group.

(emphasis added)

6    The SFIC then went on to describe the claim group in terms that reflected what was said to have been agreed at the meeting of the Tjalkadjara claim group as described in the SFIC (February Meeting). The SFIC then stated:

The Tjalkadjara claim group also authorised a replacement Applicant to bring and deal with all matters in relation to the Tjalkadjara claim. As at the date of the Tjalkadjara SFIC, the persons authorised to be the Applicant for the Tjalkadjara claim differ from persons authorised to be the Applicant in the Tjalkadjara Form 1.

The persons comprising the replacement Applicant referred to in [the previous paragraph] are Alwyn Anderson, Graham Edwards, Ivan Fraser, Elton Polak, Maria Meredith and Verna Vos.

7    It will be necessary in due course to refer in more detail to the evidence concerning the decision-making at the February Meeting. However, at this point, it is sufficient to observe that the Application is in the terms foreshadowed by the SFIC.

8    The SFIC was ordered to be filed to expose the differences between the foundations for the two competing claims in circumstances where there were disputes between the parties as to the precise extent of the differences. The Waturta Claim applicant was ordered to file an equivalent document in the Waturta Claim. The documents were intended to expose the extent of the matters in dispute and to facilitate the identification of matters that might be agreed.

9    There has been no application by the Waturta Claim applicant to the effect that the SFIC filed in the Tjalkadjara Claim should be struck-out as failing to comply with the order. Further, the application for leave to amend the SFIC was not opposed by the Waturta Claim applicant.

10    So, the SFIC which incorporates the matters that are the subject of the Application (and is drafted on the basis that the Application is successful) has not been objected to by the Waturta Claim applicant, yet it maintains that the Application should be refused. Precisely how the position of the Waturta Claim applicant on the Application was to be reconciled with its approach to the amended SFIC was not exposed in submissions.

11    The fact that the Tjalkadjara Claim applicant and the Waturta Claim applicant each advance claims to native title in respect of the same land means that in order to adjudicate the competing claims it will be necessary to resolve any controversy between them concerning the content of the societal system of traditional laws and customs for the disputed area and the identity of those who are alleged to have the requisite connection to the disputed area under those traditional laws and customs. That is to say, the nature of the competing applications is such that there is a lack of consensus between them as to at least some matters of traditional law and custom.

The status of an applicant and of a native title claim group for a determination as to the existence of native title

12    The jurisdiction to make a native title determination is conferred under s 13 of the Native Title Act. Determinations of native title must be made in accordance with the procedures in the Native Title Act: s 213.

13    Those who may apply for a determination of native title are identified in s 61. They include: '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': s 61(1) (emphasis added). The person or persons authorised to make the application are 'the applicant' and none of the other members of the native title claim group is the applicant: s 61(2). The application must describe the persons in the claim group by name or in a way that enables ascertainment as to whether a person is a claim group member: s 61(4).

14    The application for a determination of native title is required in order for a party to invoke the Court's jurisdiction to determine that native title exists: Commonwealth of Australia v Clifton [2007] FCAFC 190; (2007) 164 FCR 355.

15    These statutorily mandated procedural requirements for an application for a determination of native title have significance for understanding the nature of the authority that is required for an applicant to bring such an application. The authority that is required is authority from all those people who hold 'the particular native title claimed' (emphasis added): s 61(1). If native title is determined to exist the Court must make further determinations as to the incidents of that native title including 'who the persons, or each group of persons, holding the common or group rights comprising the native title are': s 225. Further, the likely reason for an application for a native title determination is the existence of controversy as to whether native title exists or as to its extent or as to those who form part of the society who hold native title. So, the persons who ultimately may be adjudicated to hold native title will not be known with certainty at the time of commencement of the application. Indeed, the outcome of the application may be the result of findings to the effect that there are no present native title holders. It seems unlikely that an adjudication to that effect would have been intended to have the consequence that the whole application was brought without authority based upon the retrospective application of the ultimate outcome in the proceedings.

16    Further, a determination as to the existence of native title, if made, is not made in favour of the authorised applicant who brought the claim. Rather, it results in a determination of the way in which the native title rights and interests are to be held by a process which commences with a request being made of 'a representative of the persons [that the Court] proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether [they] intend to have the native title held in trust': s 56(2)(a). Significantly, in specifying what is required at the point of making a determination, the legislation does not require the Court to inquire of the authorised applicant. Further, if a trust is proposed, the process can lead to the determination of a prescribed body corporate holding the rights and interests comprising the native title in trust for the common law holders. Otherwise, the title is held by the common law holders. If the rights and interests are not to be held in trust there must still be the appointment of a prescribed body corporate to exercise those functions: s 57. There are specified functions to be exercised by the prescribed body corporate acting as trustee.

17    It follows that, an application for a determination of native title brought according to the procedures required by s 61 of the Native Title Act is akin to a statutory form of representative or relator action in which some of the people who form part of the group that are claimed to hold native title bring the proceedings in the societal interests of all members of the native title claim group as claimed. The statutory procedures reflect the juridical source of the subject matter of the application. Native title is founded in a societal system of traditional law and custom. To claim the existence of native title is to claim the existence of a society with normative rules that confer rights and interests in relation to land or waters. Traditional rights and interests in particular land or waters may derive from that normative system. The content of those rights and interests and the identity of those who are entitled to enjoy them depend upon the existence of the society and the laws and customs observed by its members. Therefore, they owe their existence to the society as a whole. In that sense they are held by those who comprise the society, though particular rights or interests conferred by that normative system may be communal, group or individual in character. The present existence of such a societal system acknowledging laws and observing customs by which those people have a connection with the land or waters of a particular place and the continuation of that societal system since sovereignty must be asserted and established in order to demonstrate that native title exists.

18    Consequently, an application for a determination of native title must identify those who form the society whose laws and customs are alleged to be the source of the claimed native title. Hence the requirement that the group members be identified by name or in a way that enables ascertainment as to whether a person is a claim group member. Even so, the application is in respect of native title rights and interests of a claimed society in relation to particular land or waters.

19    Obviously, at the time that the application is being authorised, the Court will not yet have determined whether there is a group of people who hold native title and therefore will not have adjudicated whether traditional laws and customs are acknowledged and observed by a continuing society of people or the content of rights and interests possessed under those laws and customs. Ultimately, any determination of native title in favour of a native title holding group must resolve any issue concerning the criteria by which membership is to be determined and, thereby, the constitution of the group of people who hold native title rights and interests: State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143 at [82]-[93] (Jagot, Barker and Perry JJ).

20    The authority that is required from the 'native title claim group' (those who are said to hold the native title claimed) is stated in s 251B. Its terms reflect the societal source of any claim to native title.

21    Section 251B describes what is required for a native title claim group (or compensation claim group) to 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 the application. It provides that a person or persons will be so authorised 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.

22    So, if there is a process under traditional laws and customs of the persons in 'the native title claim group' that must be complied with 'in relation to authorising things' which 'things' are of the same kind as making a native title determination application and dealing with matters arising in relation to the application then those who are to be the applicant must be authorised by that traditional process. If not, the required process of decision-making for conferring that authority upon an applicant is that which is agreed to and adopted by the persons in the claim group as the process of decision-making in relation to making a native title determination application and dealing with matters arising in relation to the application.

23    By way of emphasis, 'the native title claim group' is the group of people who are the holders of the claimed native title (who will be determined to be the holders if the claim succeeds). They are the group that are alleged to hold the native title claimed.

24    It is sometimes said that the authorisation required by s 251B must come from the 'actual' holders of native title. This is an emphasis that reflects changes in the language used in s 61. Previously the legislation allowed for '[a] person or persons claiming to hold the native title either alone or with others' to bring an application. Changes were made to s 61 to provide for authorised persons to make the application in the manner that has been explained. This led to the observation that 'the applicants must be members of the native title claim group (the actual holders of the particular native title claimed) and be authorised by all the members of that group to make the application on behalf of that group': Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [72]-[76] (Lindgren J). See also the summary in Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308 at [181]-[183] (Bromberg J).

25    However, those statements cannot mean that the required authority depends upon an adjudication, if required, as to the identity of actual holders of any adjudicated claim. A considerable degree of circularity would attend a construction of that kind when the likely reason for the application is the existence of controversy as to whether native title exists (or as to its extent or as to those who form part of the society who hold native title) and, consequently, the traditional decision-making processes of that society when it comes to things like bringing an application for determination of native title. In my view, compliance with the procedure for commencing an application for a determination of native title could not have been intended to depend upon the certain or authoritative resolution of matters that were likely to form part of the controversy that the application itself seeks to resolve.

26    Rather, what is required is the authority of those who actually form part of the group (required to be described in the application in a way which means that membership of the group can be ascertained) who are claimed to be the holders of the claimed native title. By reason of the terms of s 61(4) it will be possible to determine whether a person is an actual member of that 'native title claim group' (being those in respect of whom the native title claimed is alleged to exist). Having regard to the claim group description required to be included in the application it will be possible to ensure that the requisite authority comes from those actual claim group members. It will also mean that a mere claim to membership of the claim group will not bring a person within the group of persons who must authorise the application.

27    It is only in the sense just described that the authority must be from the actual members of the 'native title claim group', being the members of the group said to hold the claimed native title.

28    Further, some part of the native title claim group as described could not provide the required authority because it is the authority of the whole claim group that is required: see Laing v State of South Australia (No 2) [2012] FCA 980 at [18]-[20] (Mansfield J); and Brown v State of South Australia [2009] FCA 206 at [19]-[21] (Besanko J).

29    These matters bear upon the way in which the Court approaches, in the interlocutory stages of an application for a determination of native title, the resolution of any issue as to whether there is a process of traditional decision-making for the purposes of s 251B(a) that must be followed in order to authorise the claim group.

30    There are many instances where the authority to commence and prosecute a claim is part of a controversy the subject of an application to a court. In most cases, courts deal with issues of standing by allowing the claim to be advanced if there is a bona fide factual and legal basis to contend that the claimant has the requisite authority. In some instances, there are particular procedures to be followed, such as an application for leave or approval or a requirement for a court order appointing a party to bring the claim. Mere assertion of that authority is not enough. There must be a proper basis for both the claim and the authority to bring the claim. Consequently, there is the potential for a party to seek summary dismissal on the basis that it is clear that there is a lack of authority. Otherwise, the claim may proceed and issues of authority are determined along with other issues at the final hearing to the extent that they bear upon the entitlement to the relief sought.

31    As to summary dismissal, in the case of an application for a determination of native title, the Native Title Act makes specific provision for a party to any such proceedings to apply to strike-out the application if there is a failure to comply with s 61: s 84C(1). If such an application is made it must be considered by the Court before any further proceedings take place in relation to the main application: s 84C(2).

32    Further, the Court has power to make an order requiring a person to produce evidence of authority to make an application under s 61: s 84D.

33    These provisions emphasise the need for the required authority, but they do not make any further provision as to the nature of the required authority. That provision is made in s 251B.

34    Significantly, s 84D also provides:

(3)    Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

(b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

Note: Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.

(4)    The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

(b)    make such other orders as the court considers appropriate.

35    Therefore, even if there is a demonstrated lack of authority, the Court has a discretion to proceed to hear and determine the application. It would be inconsistent with these provisions if the Court was called upon to make some form of final determination as to whether there was the requisite authority to bring and continue an application for a determination of native title in the interlocutory stages of the proceedings or to act without regard to the purpose of the authority.

36    As has been explained, the authority required to make an application for a determination that a native title claim group has native title of the kind claimed in the application must come from the group as claimed. It is unlikely to be the case that the Native Title Act contemplated that a dispute in relation to the requirements for commencement of the application process could require the Court to undertake an adjudication of aspects of the very controversy that the application process is intended to quell. All the more so where the identity of the applicant is not determinative of the orders that the Court may make as to the identity of the persons who hold 'the common or group rights comprising the native title' and any determination of native title will provide for a prescribed body corporate (and not the applicant) to have the functions prescribed under the legislation in relation to that native title.

37    It follows, in my view, that a claimant application of the kind provided for by the first item in the table set out in s 61(1) may be formulated on the basis of genuinely formed and adequately founded (albeit contestable) views as to the existence of a society of the kind required for native title to be determined to exist, including as to any process of decision-making rules that pertain in respect of things of the same kind as the making of a native title determination application and dealing with matters arising in relation to the application. That is to say, s 251B requires the claim to be authorised in a manner that is consistent with the genuinely asserted claim. Put another way, the group that must authorise the claim is the group that is claimed to hold native title and the authority conferred upon the applicant to bring the application must comply with any traditional decision-making rule which forms part of that genuinely asserted claim that would apply to things like the bringing of such claims.

38    Therefore, it is the genuinely held views amongst those who are the actual members of the 'native title claim group' as to the decision-making rules that apply under the laws and customs of the native title claimed to exist that are to be considered if an issue arises as to the source of the authority of the person or persons comprising the applicant bringing a native title application.

39    The statutory requirement for a specific kind of authority to be conferred upon an applicant who seeks to bring an application for the determination of native title reflects the unique juridical source of native title rights and interests. It is both a protection for the group members as between each other and a protection for the respondents to any application. It ensures that the authority of the applicant derives from things that are consistent with the nature of the native title claimed. It enables those who are actual group members (in the sense I have described) to insist upon the existence of that authority before a claim may be advanced and as to matters arising in relation to the claim. It also ensures that respondents do not have to answer claims brought by applicants who it can be said with some certainty lack authority of the required kind.

40    None of these matters detract from the fundamental nature of the required authorisation for the purposes of the legislated procedure for the bringing of applications for native title. The historical context for the requirement was explained by French J in the following way in Daniel v State of Western Australia [2002] FCA 1147 at [11]:

Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority. The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or State Governments of native title rights and interests. Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground.

41    However, even recognising the fundamental importance of the statutory requirements for authority from the native title claim group, for reasons that have been given, if an issue is raised concerning authority, it is not the occasion for the Court to undertake some form of final determination as to whether there is a traditional process of decision-making if there is found to be native title as claimed. Rather, what is required is an interlocutory finding as to whether the claimed basis for the authority has a sufficiently demonstrated foundation in fact and law to allow the applicant to proceed with the claim. In deciding whether that is so, it will be relevant to consider the nature of the complaint that the requisite authority is lacking and its possible consequences for the fair conduct of the proceedings.

42    The decided cases address many different factual situations. Where it is accepted that there is no applicable traditional process of decision-making and the authority is said to derive from some form of decision-making process agreed to and adopted by the claim group, the Court will scrutinise in the interlocutory stages what is said to be the foundation for that source of authority. In doing so, the Court will consider the way in which any meeting process has been conducted.

43    As to the considerations that may bear upon an evaluation by the Court as to whether the actual members of the claim group have made an informed and collective decision to authorise the claim to be brought by the persons to comprise the applicant: see Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983 at [92]-[96] (Mortimer J).

44    In deciding whether the claim group as a whole has provided the required authorisation at a meeting of the native title claim group members convened for that purpose, a standard of perfection should not be required: Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 at [54] (Rangiah J). The vote need not be unanimous and need not involve every member. 'It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process': 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 at [25] (Stone J). There should be regard to the practicalities of convening meetings and identifying group members: Gomeroi People at [48]-[53].

45    Further, the required agreement may be proved by the way a meeting is conducted without an express resolution as to a decision-making process for the purposes of s 251B(b): Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 at [18] (North, Weinberg and Greenwood JJ). Despite defects in the meeting process, the Court may conclude that there were no real consequences of those defects for the authorisation which, in substance, had been provided: Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 (Dowsett J).

46    However, in all such instances, the Court only makes interlocutory findings as to what has occurred. The extent of evidence that may be required and the conclusions that may be reached very much depend upon the circumstances of each case.

47    The same approach pertains if there is an issue as to whether there is a traditional decision-making process for matters of the same kind as making a native title determination application and dealing with matters arising in relation to the application. It is a matter about which there may be differences in views. Further, as has been explained, it is the decision-making process under the claimed normative system of law and custom that is relevant. The Court must make an interlocutory finding as to whether there is such a decision-making process and, if so, whether it has been followed.

48    Although the statutory requirement for the authority to be conferred by any traditional decision-making process is the same in each case, the forensic circumstances in which the Court is called upon to make an interlocutory finding as to whether that is the case will vary. In some instances, there will be some in the claim group who hold one view as to traditional decision-making and others who hold a different view. Resolution of the question whether the claimed basis for the authority of the applicant has a sufficiently demonstrated foundation in fact and law to allow the applicant to proceed with the claim will depend upon the evidence. However, it will also depend upon whether there are significant consequences for particular group members if the applicant can claim to be able to conduct the application on behalf of all of the native title claim group on the claimed basis as to the source of that authority. A consequence of that kind for particular identified members of a claim group was the reason why McEvoy J found that there was a defect in authorisation in Illin on behalf of the Bindal People #2 v State of Queensland [2024] FCA 1242.

49    In other instances, there will be no issue from within the group and it will be a respondent who claims that the required authority has not been conferred. An interlocutory finding as to whether there is the required authority will have regard to the consensus amongst the native title claim group members as to their traditional decision-making processes.

50    In my view, the above analysis accords with the approach taken where there is an application to strike-out on the basis that there is no authority. On the hearing of such applications the Court does not seek to form any decisive view. Rather, the authorities emphasise caution. I collected the authorities in Forrest on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia [2021] FCA 399 at [16], see also Williams v Grant [2004] FCAFC 178 at [48]-[49], [84] (Lander J, North and Dowsett JJ agreeing).

51    It is also consistent with the statutory discretion conferred by s 84D, as to which see Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [90]-[98] (White J).

52    Section 251A has similar wording to s 251B. Section 251A concerns the authorisation by those holding native title in relation to land or waters covered by an indigenous land use agreement of the making of an agreement. In considering the terms of s 251A, Barker J expressed the view that it was for the group of native title claimants themselves to decide whether or not there is a traditional decision-making process (and not a matter for the Court on judicial review to decide): see Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955 at [71].

53    However, in considered obiter in Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387, in a case concerned with s 251B, Mortimer J (as the Chief Justice then was) said at [32]-[33]:

With great respect to Barker J, I find myself unable to agree with the approach taken by his Honour in this case. Section 251A, like s 251B, is definitional. It is not formulated, in its text, by reference to the formation of an opinion or a state of satisfaction. In its definition, it provides that 'where there is a process of decision-making' under traditional law and custom that must be followed, that process must be used. The definition requires the existence of such a process as a matter of objective fact. Of course, evidence from native title holders will be crucial in establishing that objective fact. However, the provision does not require the group as a whole to form an opinion and for that opinion to operate as the definition.

The meaning I prefer can be tested by reference to s 251B(b). That part of the definition requires a process 'agreed and adopted by' the claim or compensation group to make a decision. As all the decisions of this Court where the existence of such a process is examined demonstrate, the Court does not ask whether the group holds an opinion that it has agreed or adopted a process. The Court looks at the evidence and decides, as a matter of objective fact, whether the group 'agreed and adopted' a process. The same approach applies to s 251B(a).

See also Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2022] FCA 65 at [49] (Bromberg J).

54    Respectfully, I agree with the Chief Justice that it is not for the native title claim group to decide for themselves whether there is a traditional decision-making process to be followed. Rather, they are required to follow any decision-making process that forms part of the laws acknowledged and customs observed that are the foundation for their claimed native title. If there is a lack of consensus amongst the claim group as to those matters which has consequences for whether the requisite authority has been given to an applicant then the Court may need to make interlocutory findings. In doing so, it will consider evidence as to the foundation for the views as to the traditional decision-making process under the claimed native title. It will not determine that issue by reference to the terms of a resolution that may be passed at a meeting as to what the traditional decision-making should be. Nevertheless, the fact that a meeting has proceeded in a particular way, without dissent as to the required decision-making process under the normative system that is the foundation for the claimed native title, may be relevant to making an interlocutory finding as to that fact. If all present at the meeting are of the same view then that is significant evidence as to the traditional decision-making process as it is known and observed within the claim group.

55    In Holborow v State of Western Australia [2002] FCA 1428, French J considered an application to remove one of the named persons comprising the applicant in an application for a determination that native title exists. The person concerned was Ms Cooper. There was evidence about meetings being convened and various decisions being made based upon voting by group members in attendance at the meetings. As to decisions made by the claim group, Ms Cooper's position was that the claim group must revert to the decision procedure utilised in the lodgement of the claim which required unanimity on culturally significant issues: at [35]. The application was determined by French J on the following basis (at [50]):

Having regard to the definition provision, s 251B, I am not satisfied that there is any process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising decisions of the claim group in relation to the land the subject of the application. There is no evidence of a traditional decision-making method that must be complied with. The fact that the great bulk of members of the native title claim group were prepared to adopt the decision-making process used in this case contraindicates the existence of a mandatory traditional decision-making method. This is consistent also with the evidence of Mr Parker. It may be that traditional decision-making processes relevant to land can be located within the sub-groups of the native title claimant group represented respectively by the Yaburara and the Coastal Mardudhunera people. This, however, is a native title determination application which covers both groups. That is not an uncommon phenomenon. It is not surprising in such cases that there would not be traditional decision-making processes embracing all elements of the hybrid claim group. I accept that the process of decision-making by a meeting of the native title claim group such as was held in Karratha on 14 November was a process agreed to and adopted by the persons in the group.

56    Finally, it has been determined that a traditional decision-making process which has broken down may be a reason why the required authority need not be conferred by such a process. This was indicated by the reasoning in Lawson where Stone J considered an application to replace the applicant in an application for a determination that native title existed. The application was brought on the basis that the authority of the existing applicant had been revoked and a replacement applicant had been authorised. It was accepted that the existing applicant had been authorised by a traditional decision-making process. Further, the Court had determined previously that the traditional decision-making process had not been followed when it came to the events relied upon as revoking the authority of the existing applicant and conferring authority on the replacement applicant. Nevertheless, it was contended that 'the traditional decision-making process has been "unable to sustain" the Claim Group which therefore has had resort to the more direct approach of having the members of the Claim Group directly vote on the issues relevant to this application': at [20].

57    In those circumstances, her Honour concluded that 'there is no relevant traditional decision-making process capable of dealing with the decisions that need to be made to progress this claim and resolve the problem of who is to represent the Claim Group' (emphasis added): at [21]. In the circumstances of the present case, it is not necessary to consider whether such an approach is consistent with the terms of s 251B.

58    For completeness, I observe that different considerations apply when it comes to any conditions imposed upon the authority of the group members comprising the applicant as provided for in s 251BA. They can be ascertained with certainty. Those conditions must be met and the Court will scrutinise whether that is the case.

Change to the claim group description

59    The state of the authorities as to what is required in order to effect a change in the composition of a native title claim group was summarised by Bromberg J in Champion at [17] in the following terms:

In order to effect a change to the composition of a native title claim group, the claim group must abide by a two-step process: Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746 at [56]-[57] (Reeves J). First, the existing claim group must meet to determine how the claim group is to be reconstituted. Second, the replacement claim group must meet to authorise the applicant or a new applicant to make the claim on behalf of the replacement claim group. The Act does not expressly mandate authorisation pursuant s 251B for the first step, but case law has proceeded on the basis that authorisation is required: Forrest v State of Western Australia [2014] FCA 876 at [8]-[12] (Gilmour J); Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2019] FCA 651 at [26] (Murphy J). The second step requires the replacement claim group to authorise a 'new' applicant. While described as 'new', it may be the case that the replacement claim group merely reauthorises the existing applicants. Where the proposed group of persons who will be the applicant is actually new, such as in the present application, the requirements of s 66B(1) of the Act must also be met.

(original emphasis)

Replacing the applicant in an application for a determination that native title exists

60    Section 66B of the Native Title Act provides, amongst other things, that:

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

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

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

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

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

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

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

(there is no s 66B(1)(ii))

61    There is a note to s 66B(1) as follows:

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

62    Section 251B applies both to the authority of an applicant to bring and continue proceedings and also to the revocation of that authority: Ward v Northern Territory of Australia [2002] FCA 1477 at [10] (Mansfield J) applied in Lawson at [14].

The events at the February Meeting

63    The evidence before the Court on the Application as to relevant events at the February Meeting is to the following effect:

(1)    The February Meeting was convened as a meeting of the claim group for the Tjalkadjara Claim.

(2)    After the meeting was opened there was discussion about the decision-making process to be adopted and the following resolution was passed:

The Tjalkadjara claim group resolve that there is not a traditional decision-making process in Tjalkadjara traditional laws and customs which must be followed for the making of native title decisions. Instead, the Tjalkadjara claim group resolve to agree and adopt a decision-making process for the claim group meeting on 18 and 19 February 2025, whereby:

1.    The claim group will consider the decision to be made;

2.    Objections to the decision will be recorded;

3.    The decision will be made if a majority of the Tjalkadjara claim group members present raise their hand(s) in support of the decision; and

4.    If a decision is particularly contentious or it is unclear whether or not a majority is reached, the number of persons voting 'for' and 'against' the decision will be recorded.

(3)    Later, there was a discussion of the proposed change to the claim group description.

(4)    A resolution was then passed that the claim group description for the Tjalkadjara claim be amended in specified terms (being the terms in which the Application is now brought).

(5)    There was then consideration of a resolution to authorise people to comprise the applicant for the amended claim, including taking steps to amend the application and to bring the application pursuant to s 66B.

(6)    A resolution was passed to authorise six persons, five of whom are the subject of the part of the Application which seeks an order to replace those persons who comprise the current applicant in the Tjalkadjara Claim.

(7)    A resolution was also passed as to the limits on the authority of those persons as the applicant for the Tjalkadjara claim.

64    There were affidavits from five persons who were proposed as the replacement applicant for the Tjalkadjara Claim which were to the effect that they were not aware of anyone who had sought to be part of the claim group for the Tjalkadjara Claim who was not invited to attend and participate in the February Meeting. The sixth person approved at the meeting did not consent to being one of the persons to replace the applicant.

65    There was no evidence to indicate that as a result of the changes to the claim group description there were persons who were at the February Meeting who no longer came within the claim group description if the amendments to the claim group description were effected.

66    In those circumstances, I proceed in the present case on the basis that those present and participating in the February Meeting were members of the native title claim group as currently expressed and as proposed by the amendments considered at the meeting. It would have been preferable for that aspect to be addressed explicitly by the evidence in support of the Application. However, given the evidence in support of the Application and the absence of any articulated basis by the Waturta Claim applicant for a contrary view (see below), I am prepared to infer that to be the case for the interlocutory purposes of the Application. As is explained below it is supported by evidence to the effect that the changes to the claim group description were viewed as being 'technical'.

The evidence concerning decision-making

67    Mr Jeremy Brown, the deputy principal lawyer for the representative body in receipt of funding from the Commonwealth for the purpose of advancing the Tjalkadjara claim, provided affidavits in support of the Application. In the first of those affidavits he deposed that based on his review of files and 'observation of the Tjalkadjara claim group over time' it was his understanding and belief that the claim group did not have a traditional decision-making process which they must follow for the making of native title decisions and, consequently, 'the Tjalkadjara claim group use an agreed and adopted process for decision-making which involves the making of decisions by majority vote by show of hands'.

68    Mr Brown also deposed that notice was given of a claim group meeting for the Tjalkadjara Claim to be held on 18 and 19 February 2025 to consider amending the claim group description and to make a decision in relation to the identity and authority of the applicant for the claim.

69    In the affidavits deposed by the five persons proposed as the replacement applicant for the Tjalkadjara Claim there were statements to the following effect:

There is not a traditional decision-making process in the Tjalkadjara traditional laws and customs which must be followed for the making of native title decisions. Instead, the Tjalkadjara claim group agree and adopt processes for making decisions, which comprises:

(a)    Holding a meeting at which all persons who have been identified as holding rights and interests in the claim area were invited to attend; and

(b)    At the meeting, making decisions by majority vote which is determined by a show of hands.

Consequently, the Tjalkadjara claim group resolved to agree and adopt a decision-making process for the claim group meeting on 18 and 19 February 2025, whereby:

(a)    The claim group will consider the decision to be made;

(b)    Objections to the decision will be recorded;

(c)    The decision will be made if a majority of the Tjalkadjara claim group members present raise their hand(s) in support of the decision; and

(d)    If a decision is particularly contentious or it is unclear whether or not a majority is reached, the number of persons voting 'for' and 'against' the decision will be recorded.

(The above quotation is from the affidavit of Ms Verna Vos dated 21 March 2025. There are slight differences in wording in other affidavits).

70    One of those five persons was Ms Maria Meredith.

71    In a further affidavit, Mr Brown deposed to having received an email from Mr Luke Nixon the solicitor on the record for the applicant in the Waturta Claim. In that email, Mr Nixon referred to an affidavit that had been deposed by Ms Meredith in 2021 concerning an issue that had arisen at that time as to whether the Tjalkadjara Claim had been properly authorised. Reference was made to a passage in the 2021 affidavit of Ms Meredith in which she said she disputed the assertion that there was a failure to follow the process of decision-making under traditional laws and customs.

72    The email from Mr Nixon also referred to passages in my reasons in Forrest on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia [2021] FCA 399 at [72]-[86]. Those reasons concerned an application brought at that time by the applicant in the Waturta Claim to strike-out the application in respect of the Tjalkadjara Claim. In support of the strike-out application it was contended that (a) the decision-making process used to authorise the claim was a show of hands when a traditional decision-making process was required; and (b) the required traditional decision-making process was not followed because those with traditional authority did not participate in the meeting at which authority was said to have been conferred upon the applicant to bring the Tjalkadjara Claim.

73    In determining the strike-out application I reasoned as follows (at [73]-[74]):

… all of the evidence is to the effect that there is a traditional form of decision-making that applies to decisions of the kind made at the Meeting concerning the conferring of authority to bring an application in respect of the Tjalkadjara Claim. It is a consensual process in which there is discussion in which respect is afforded to those who are more senior and then a submission by way of consensus to views taken by or supported by senior watis.

The evidence of Ms Meredith and Ms Hogarth, both senior elders, is that they have been given authority to speak for Country by the senior watis. Objection was taken to the form of this evidence, but it was not contradicted. Rather, the complaint that was made was to the effect that the traditional form of decision‑making was not followed at the Meeting (and that there was a bifurcation of decision‑making to the extent that the senior watis indicated support outside the Meeting).

74    After considering what had occurred at the relevant Meeting, I concluded at [86]:

Taking the evidence at its highest from the perspective of the respondents to the strike-out application, I do not accept for the purposes of the strike-out application that it has been shown that the relevant decisions at the Meeting were not made in accordance with the applicable traditional decision‑making process.

75    In the email, Mr Nixon maintained that the claim group authorisation at the February Meeting was invalid.

76    In support of the present Application, Mr Brown then deposed to the following additional matters concerning the decision-making process adopted at the February Meeting:

(1)    Before the meeting, Mr Brown had several discussions with two of his colleagues at the representative body and with members of the applicant for the Tjalkadjara Claim.

(2)    In those discussions he understood that the process used at the meeting in 2018 when the Tjalkadjara Claim was authorised 'was an agreed and adopted process which incorporated aspects of traditional decision-making processes to the extent practicable'.

(3)    Mr Brown also understood 'that the decisions which were proposed to be made at the February Meeting … were not decisions which required a traditional decision-making process in accordance with Tjalkadjara traditional laws and customs'.

(4)    Mr Brown understood from discussions with members of the applicant for the Tjalkadjara Claim that:

… the decisions proposed to be made at the February Meeting were considered to be 'technical' or 'legal' decisions, whereas the decision to authorise the bringing of the claim at the 27 and 28 November 2018 meeting was one that required a greater degree of traditional decision-making to be incorporated into an agreed and adopted decision making process.

(5)    At the February Meeting, a colleague from the representative body had explained that:

… it was the understanding of the lawyers who work on the Tjalkadjara claim that the decisions which would be made at the February Meeting did not require a traditional decision-making process in accordance with Tjalkadjara traditional laws and customs. I do not recall that there was any debate about this, or any indication that it was incorrect, from members of the Tjalkadjara claim group in attendance at the February Meeting.

(6)    As to what occurred at the February Meeting in relation to decision-making:

Members of the Tjalkadjara claim group expressed support for this proposed model of decision-making for the February Meeting, and the decision-making process was agreed to and adopted by a clear majority. There was only one objection recorded to the decision-making process proposed to be used. I cannot recall the nature of that objection. I do not recall there being any indication from any members of the Tjalkadjara claim group that a different decision-making process should be used at the February Meeting.

77    In opposition to the Application, the applicant in the Waturta Claim read and relied upon two previous affidavits of Ms Meredith that had been filed in the proceedings. The first was dated 27 November 2018 and had been provided in support of the application when initially lodged. It included the following statement:

At a meeting of the native title claim group held at the Laverton Racecourse in Laverton on 27 November 2018 the members of the native title claim group confirmed that there is a traditional decision making process which must be complied with in relation to authorising the applicant to make the application and to deal with matters arising in relation to it. That process involves holding a meeting at which:

(a)    all persons who have been identified as holding, or who themselves assert that they hold, rights and interests in the proposed claim area are invited to attend; and

(b)    the proposal for a claim, the membership of the claim group, and the respective rights of the people within the claim group are discussed, with a view to achieving a consensus decision by the end of the meeting.

78    The second was an affidavit dated 17 February 2021 that had been filed in opposition to the strike-out application. As has been mentioned, the affidavit disputed the assertion that the process of decision-making under traditional laws and customs had not been applied.

The grounds of opposition to the Application

79    In correspondence and in written submissions in opposition to the Application, the Waturta Claim applicant maintained that the evidence showed that there was a traditional decision-making process that was required to be followed when it came to the conferral of authority for the purposes of the Application. Further, it contended that there was no suggestion that the traditional decision-making process had broken down. It said that there could not be reliance upon s 251B(b) in those circumstances because there was a traditional decision-making process and it had not been followed.

80    In those circumstances, the Waturta Claim applicant contended that the Application must be dismissed because there was no demonstrated authority of the kind required by s 251B(a).

81    The Tjalkadjara Claim applicant maintained that on the evidence it had been established that as at the time of the February Meeting there was no traditional decision-making process for the purposes of the matters considered at the February Meeting and that the evidence established, at least for interlocutory purposes, that there was authority of the kind referred to in s 251B(b) and the Application should be allowed on that basis. The position of the Tjalkadjara Claim applicant was supported by the State of Western Australia. The Commonwealth neither supported nor opposed the application. None of the other respondent parties made any submission.

82    In the course of oral submissions, the Waturta Claim applicant also raised an issue concerning the form of the notice for the meeting.

The issue as to traditional decision-making rules for the purposes of s 251B(a)

83    On the evidence there were three resolutions passed at the February Meeting of relevance for present purposes. The resolution as to the decision-making process, the resolution to amend the claim group description and the resolution to replace the applicant.

84    For reasons I have given, the question whether there is a required traditional decision-making process was not a matter for determination by resolution at a meeting of the native title claim group. Rather, it is a matter for objective determination by reference to matters of traditional laws and customs that form the basis for the native title claimed to be held by the native title claim group. Nevertheless, the fact that the issue was expressly addressed at the meeting which was convened after notices were given of the meeting followed by an active consultation process and there was agreement amongst those in attendance that there was no applicable traditional decision-making process, provides strong support for making the objective finding for interlocutory purposes that there was no traditional decision-making process for decisions of the kind being made at the February Meeting that concerned the authority to conduct the Tjalkadjara Claim.

85    Save for an issue as to the contents of the notice (addressed below), there is no issue raised as to the way in which the February Meeting was convened, the details as to which were deposed to by Mr Brown.

86    The only written submission made which concerned the formulation of the notice of meeting was expressed in a footnote to support a submission that the February Meeting was called to authorise a replacement applicant and to consider making changes to the SFIC and other matters as required 'including making substantial changes to the claim group composition'. The footnote was expressed in the following terms:

The proposed amendment to the claim group description includes removing 14 named ancestors and three persons identified as having been born on the claim area. some of whom are recognised in the Waturta SFIC (see Waturta SFIC at [43(k) and (l)). Those specific amendments were not included in the meeting notice. Rather the agenda specifically stated 'To consider and authorise amendment of the Tjalkadjara native title claim group description for the Tjalkadjara Native Title Claim.' There is no evidence before the Court that specific notice was given to those affected by these proposed changes and no evidence to explain these changes.

87    Despite the terms in which this footnote was formulated, there was no attempt by the Waturta Claim applicant to identify anyone who might be affected by the changes to the claim group description. At its highest it was said that it had not been established by the Tjalkadjara Claim applicant that it can be presumed that changes to the claim group description refer to the same group as the existing claim group description. Bearing in mind that the Waturta Claim has been on foot for many years, the Waturta Claim applicant has previously sought to object to the authorisation of the Tjalkadjara Claim and there have been mediations between the competing claim applicants over many years, it may be expected that if indeed the changes to the claim group description were substantial in the sense that they had significant consequences for the current composition of persons who are within the Tjalkadjara claim group then the Waturta Claim applicant would be able to identify what those consequences may be. Yet, there was no attempt to do so.

88    Further, it appears that the February Meeting was conducted on the basis that the changes to the claim group description were technical. The affidavit evidence refers to explanations being given to those at the meeting by lawyers for the claim group but privilege in those communications is maintained. Mr Brown has deposed to having facilitated a discussion at the February Meeting about the proposed changes to the claim group description. He says that he explained the proposed amendments to the claim group description as having the following effect:

(a)    Rearrange the way in which the claim group description was set out;

(b)    Remove some apical ancestors from the claim group description; and

(c)    Make changes to several of the other apical ancestors in the claim group description to tidy up or simplify the claim group description.

89    As to the characterisation of the changes as technical, the Waturta Claim applicant advanced no submissions to the effect that the changes were not of the kind described. Nor did the Waturta Claim applicant point to any factual basis to conclude that the changes affected the composition of the claim group in any material respect. It is possible for changes of the kind described by Mr Brown to be made without substantive consequences for the current group of people who make up the claim group.

90    Although the above written submission was advanced in support of the contention that the decisions to be made at the February Meeting required a traditional decision-making process to be followed (on the basis that it involved changes to the composition of the claim group), in oral submissions there was an attempt to re-cast the point as a submission to the effect that there was a deficiency in the notice of the meeting of a kind which would affect whether there had been authorisation for the purposes of s 251B(b). It was suggested that there was a deficiency in the meeting notice because it failed to refer to the specific amendments to the claim group description that were to be made and thereby deprived those who would be affected of the opportunity to attend. Implicit in a submission of that kind is the proposition that there were such people. Yet, as has been explained, there was no attempt to explain why the changes may result in individuals who consider themselves to form part of the group of people who hold native title rights the subject of the Tjalkadjara Claim being excluded from the claim group. In particular, there was no indication why the amendments may result in the exclusion of current claim group members for the Tjalkadjara Claim who may have an interest in opposing the proposed changes. This is not a case like Illin where there were identified members of a family group and there was an issue raised by those identified members and the State as to the authority of the applicant to prosecute the claim.

91    In those circumstances, I am not persuaded that there was any substantive consequence flowing from the terms in which the notice of meeting was expressed.

92    As to the decision-making process, there is no evidence that anyone in the native title claim group as presently described (and as proposed to be changed) is of a different view to that expressed in the resolution concerning traditional decision-making. The five persons proposed to comprise the new applicant have all deposed that there is no traditional decision-making process that would apply to the proposed change in the description of the native title claim group or the replacement of the applicant.

93    As I have explained, the affidavit evidence in support of the Application is to the effect that the amendments were technical or legal. Those in attendance at the February Meeting were given advice that the technical nature of the amendments meant that they did not require traditional decision-making. On the evidence, that advice was given after consultation with members of the applicant for the Tjalkadjara Claim. It was a proposition with which those at the meeting could disagree. The evidence of Mr Brown is that he did not recall 'that there was any debate about this, or any indication that it was incorrect, from members of the Tjalkadjara claim group in attendance at the February Meeting'.

94    It is a logical possibility that the matters the subject of the Application may be understood to be technical in character and to be viewed differently as a matter of law and culture to those things that were involved in making a decision to commence a native title application, especially one that involved a claim being brought that overlapped with the Waturta Claim. The decision-making authority that may be required to bring a claim in conflict with another claim is a different kind of decision to the decisions the subject of the Application which concern the content of the claim itself.

95    At this time, there is no dissent amongst the claim group members for the Tjalkadjara Claim from the proposition that there was no traditional decision-making process for the matters the subject of the Application. At the February Meeting there was an objection recorded to the decision-making process. However, there is no suggestion that any members of the claim group at the February Meeting expressed the view that there was a traditional decision-making process that should be followed.

96    In those circumstances, the previous affidavits of Ms Meredith which related to the authority conferred to commence the Tjalkadjara Claim a number of years ago are an insufficient basis to conclude for interlocutory purposes that a traditional decision-making process was required under the laws and customs that are the basis for the Tjalkadjara Claim when it comes to the matters the subject of the Application.

97    For those reasons, I am persuaded for the purposes of the Application that it has been demonstrated that there was no traditional decision-making process that was required to be followed in respect of the matters the subject of the Application.

Conclusion on the Application

98    As required, the February Meeting followed a two-step process. First, it determined that there should be a change to the claim group definition. Second, it authorised the people who would make the claim as amended. If the amendment to the definition of the claim group resulted in a known change to the people who constitute the claim group then the authority to continue with the native title claim by the amended claim group would require authority from that differently constituted group. However, as I have explained, I infer from the evidence, particularly the substantively uncontested view that the matters considered at the February Meeting were technical in character, that there was no consequence of that kind.

99    In all the circumstances, for reasons I have given, I am persuaded that the resolutions passed at the February Meeting were the informed and collective views of the native title claim group for the Tjalkadjara Claim that conferred the requisite authority for the purposes of s 251B(b) as to the matters the subject of the Application.

100    For those reasons, I will make orders in the terms sought.

Associate:

Dated:    27 May 2025

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