Federal Court Allows Amendment of Native Title Claim Group

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME] v [NAME] [2014] FCA 876 Citation: [NAME] v [NAME] [2014] FCA 876

Parties: [APPELLANT] v [NAME] AND [APPELLANT] number: WAD 25 of 2012

Judge: GILMOUR J

Date of judgment: 19 August 2014

Catchwords: NATIVE TITLE – application to amend the composition of the [COMPANY] by amending the Native Title Determination Application – legal requirements – consideration of two-step process for amending the composition of a [COMPANY] – adequacy of notice – leave to file an amended application granted

Legislation: Native Title Act 1993 (Cth) s 251B

Cases cited: [NAME] v [NAME] [2007] FCA 1703 Doctor on behalf of the [NAME] v [NAME] (No 2) [2013] FCA 746 [NAME] v [NAME] [2006] FCA 1564 [NAME] on behalf of the [NAME] v [NAME] (No 2) [2009] FCA 1180

Date of hearing: 23 July 2014

Place: [APPELLANT]: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 23

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the [NAME]: Ms [COUNSEL]

Solicitor for the [NAME]: [NAME]

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 25 of 2012

BETWEEN: [APPELLANT]

Applicant

AND: [NAME] AND [APPELLANT]

Respondents

[APPELLANT] OF ORDER: 23 JULY 2014 [APPELLANT]

THE COURT ORDERS THAT:

1. The applicant has leave to file an amended application in the form of the document which is annexure "JLC-4" to the affidavit of [NAME] [APPELLANT] sworn 24 June 2014, together with all supporting attachments and also the affidavits sworn or affirmed by each member of the applicant which meet the requirements of s 62(1)(a) of the Native Title Act 1993 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 25 of 2012

[APPELLANT]

Applicant

AND: [NAME] AND [APPELLANT]

Respondents

JUDGE: GILMOUR J DATE: 19 August 2014 PLACE: [APPELLANT] FOR

JUDGMENT 1 I made orders on 23 July 2014 granting the applicant leave to file an amended application. These are my reasons for so doing. 2 The application was not opposed. I have adopted, without attribution at every point, parts of the applicant's written submissions, none of which were challenged and which I accept. 3 The applicant by interlocutory application filed on 24 June 2014 seeks the leave of the Court to file an amended Native Title Determination Application (Form 1), the amendment being to effect a change to the [COMPANY] description set out in Schedule A to the existing Form 1. 4 The applicant relies on an affidavit of [NAME] [APPELLANT] sworn on 24 June 2014 (Ms [APPELLANT]'s affidavit).

Nature of the proposed amendment to the [COMPANY] description 5 The current [COMPANY] is defined by reference to 157 apical ancestors: (a) 106 of whom are described in Ms [APPELLANT]'s affidavit as "[NAME]", meaning they are the apical ancestors whose descendants are the native title holders for the determined [NAME] claim ([NAME] v [NAME] [2007] FCA 1703); (b) 41 of whom are described in Ms [APPELLANT]'s affidavit as "[NAME]", meaning they are the apical ancestors whose descendants are from country covered by the as-yet-undetermined Ngurra Kayanta claim ([NAME] & [NAME] v [NAME] (WAD 410/2012)); and (c) 10 of whom are apical ancestors whose descendants are considered by the claimants as having their local [NAME] (or 'country') located in the [NAME] claim area (the [COMPANY] description). 6 The proposed amendment involves amending the [COMPANY] description by substituting the list of apical ancestors contained in Schedule A of the current Form 1 with an alternative list of apical ancestors (Amended Apicals). This amendment would result in the inclusion of some new apical ancestors, and the removal of some [APPELLANT] from the [COMPANY] description.

Legal requirements for a native title group seeking to amend its composition 7 In Doctor on behalf of the [NAME] v [NAME] (No 2) [2013] FCA 746, [NAME[NAME] refers to a "two-step process" required when a [COMPANY] wishes to alter its composition: [56] … That two-step process appears to have its origins in some observations made by [NAME[NAME] to the effect that, if a [COMPANY] wishes to alter its composition, the existing [COMPANY] needs to meet and determine how the [COMPANY] is to be reconstituted and then the new or [COMPANY] needs to meet and decide to authorise a new applicant to make the claim on behalf of that [COMPANY]: see, for example, [NAME] v [NAME] [2006] FCA 1564 at [13]-[15] and [NAME] on behalf of the [NAME] v [NAME] (No 2) [2009] FCA 1180 ([NAME]) at [14]. [57] Section 61 of the Act makes it clear that the authority vested in the authorised applicant comes exclusively from the [COMPANY] on whose behalf the native title determination application is made. Further, the validity of that authority fundamentally relies upon the [COMPANY] following the authorisation process set out in s 251B of the Act. It follows that, if an existing [COMPANY] wishes to alter its composition, it must first meet as a whole and resolve to do that. If it does, then the new or reconstituted [COMPANY] must then meet and resolve in accordance with the process set out in s 251B to authorise an applicant to make a claim on its behalf under s 61.

For these reasons, I respectfully agree with the observations of [NAME[NAME] above.

Authorisation of the amendment – 'Step 1' 8 The authorisation of the amendment to the [COMPANY] description took place at a meeting held on 9 April 2014 at Fitzroy Crossing in the Kimberley region of Western Australia. 9 The meeting was open to be attended by both members of the [COMPANY] as presently described in Form 1 ([COMPANY]), as well as by any person who claims to hold native title rights and interests in the area of country contained within the [NAME] claim area. 10 Details of that meeting, including the steps taken to notify the members of the [COMPANY], are set out in Ms [APPELLANT]'s affidavit at [21]-[40]. 11 In summary, Ms [APPELLANT]'s affidavit relevantly deposes to the following facts: (a) Prior to the authorisation meeting, the Kimberley Land Council ([NAME]) gave notice of that meeting by: (i) sending (both by post and email) a Notice of Meeting together with a covering explanatory letter to all members of the [COMPANY] whose relevant contact details are known to the [NAME]; (ii) publishing, on various dates between 20 and 29 March 2014, a public notice for the meeting in the Broome Advertiser, Kimberley Echo and Pilbara Echo (each being newspaper publications); (iii) hand delivering copies of the Notice of Meeting to members of the [COMPANY] in and around Fitzroy Crossing and surrounding communities; (iv) faxing or delivering copies of the Notice of Meeting to a number of community organisations, stores and roadhouses with a request that the notice be posted on relevant notice boards; and (v) [NAME] verbally advising [COMPANY] members about the upcoming authorisation meeting. (b) The Notice of Meeting advised that the meeting would consider, inter alia: (i) the history and previous authorisation of the [NAME] claim; (ii) a proposal to amend the current [COMPANY] description; and (iii) decisions by the [COMPANY] about amending the [COMPANY] description based on outcomes from discussions. (c) The Notice of Meeting set out the names of the apical ancestors contained in the existing Form 1 (as filed), as well as a second list of apical ancestors who were to be proposed to comprise an amended [COMPANY] description. This proposed list of apical ancestors effectively removed 41 names from the [COMPANY] description, and added a further two names. (d) In the covering letter (described in [11(a)(i)] above) sent to members of the [COMPANY] it was stated that: At the meeting the anthropologist working on this claim, Dr [NAME], will go through the list of apical ancestors currently in the [COMPANY] description to ensure it is the correct list of names. Following this discussion, the claimants will be asked to make a decision whether or not to change the [COMPANY] description. (e) In excess of 100 [NAME] attended the meeting. The meeting was considered to be well attended and a fair and reasonable representation of all family or community groups which form part of the [COMPANY] was in attendance at the meeting. (f) Following extensive discussion between meeting attendees and Dr [NAME] (the anthropologist engaged by the [NAME] to work on the [NAME] claim), the meeting resolved, adopting the traditional decision making processes of the [NAME] [NAME], as follows: It is decided by the [COMPANY] that the [COMPANY] description should be amended so only the apical ancestors discussed today and outlined in the document titled '[NAME] amended [COMPANY] description' will be the [NAME] apical ancestors. (g) A copy of the document titled "[NAME] amended [COMPANY] description" is annexed to Ms [APPELLANT]'s affidavit, marked "JLC-3", at page 26. That document lists the names of the proposed Amended Apicals. (h) The Amended Apicals differ from the apical ancestors which define the [COMPANY] description as follows: (i) 24 of the apical ancestors are removed from the [COMPANY] description; and (ii) new apical ancestors are added to the [COMPANY] description. (i) That is, of those 41 names which the Notice of Meeting foreshadowed may be removed, only 24 were ultimately removed by the [COMPANY]. There were no apical ancestors removed from the [COMPANY] description who were not specifically identified in the Notice of Meeting as potentially being removed. (j) The names added to make up the Amended Apicals were names provided to Dr [NAME] by attendees at the meeting and confirmed by the [COMPANY] as having native title rights and interests in the [NAME] claim area. 12 The meeting process outlined above, and as detailed in Ms [APPELLANT]'s affidavit, satisfies the first step in the "two-step" procedure as identified by [APPELLANT[NAME] in Doctor (No 2). That is, as the applicant submits, the notification procedures followed by the [NAME] resulted in a validly held meeting of the [COMPANY] on 9 April 2014 and, at that meeting, through the application of their traditional decision-making process, the [COMPANY] resolved to amend the list of apical ancestors set out in Schedule A to Form 1, and replace this list of apical ancestors with the Amended Apicals.

Authorisation of new applicant by [COMPANY] – 'Step 2' 13 Justice Reeves in Doctor (No 2), following earlier decisions of [NAME[NAME], found that following a decision by a [COMPANY] to amend its composition, "the new or [COMPANY] needs to meet and decide to authorise a new applicant to make the claim on behalf of that [COMPANY]": at [56]. Further, this authorisation must take place in accordance with the authorisation process set out in s 251B of the Native Title Act 1993 (Cth) (the Act). 14 The applicant submits, and I accept, that this second step to amending the [COMPANY]'s composition was completed in accordance with s 251B of the Act and occurred as follows. 15 Following the decisions to amend Form 1, the [NAME] (the [COMPANY]) convened a meeting to authorise a "new" applicant. This meeting, for all intents and purposes, was a continuation of the meeting of the [COMPANY] in that it was held at the same venue immediately following the making of the decision of the [COMPANY] described in [11(f)] above. 16 I am satisfied that the members of the [COMPANY] were given proper notice of this second meeting by virtue of the notification procedures deposed to in paras [26]-[29] of Ms [APPELLANT]'s affidavit and being those which were undertaken in relation to the meeting of the [COMPANY]. This is evidenced in the form and contents of the notice as outlined in Ms [APPELLANT]'s affidavit. 17 In particular, I note the following: (a) the Notice of Meeting was addressed to the descendants of all apical ancestors listed in the Form 1 Native Title Determination Application (which includes the [NAME], the [NAME] and the apicals of 'local' [NAME] from the claim area), as well as any person who claims to hold native title rights and interests within the [NAME] native title claim area; and (b) the Notice of Meeting included both a list of the apical ancestors contained in Form 1, as well as a proposed new list of apical ancestors to make up an amended [COMPANY] description. 18 The only members of the [COMPANY] who were not specifically mentioned in the Notice of Meeting were those descendants of the new apical ancestors the [COMPANY] chose to include in the Amended Apicals. All other members of the [COMPANY] were notified of the meeting through the specific mention of their apical ancestor in the Notice of Meeting. 19 The applicant submits that, absent any evidence to the contrary, it is most likely that it was the descendants of those added apicals who themselves put forward these names to be added to the [COMPANY] description, which were subsequently accepted and included in the Amended Apicals by resolution of the [COMPANY]. It follows that, by virtue of these [NAME] being at the meeting of the [COMPANY], they were aware of and participated in the decision of the [COMPANY] in the meeting which immediately followed. Certainly this appears to be a reasonable inference. More importantly, the proposed inclusion of these new apical ancestors was discussed by those present and agreed to by those present. 20 The decision-making process for the authorisation of the new applicant by the [COMPANY] is described in Ms [APPELLANT]'s affidavit which relevantly deposes (at [35] and [40]): (a) Upon the decision of the [COMPANY] [to amend the [COMPANY] description], the [NAME], and only those [NAME], were then entitled to vote on resolutions to be made at that meeting. (b) Relevantly, those members of the [COMPANY] present decided that: (i) decisions at that meeting would be made by the same traditional decision making process as has been used in previous meetings of the [NAME]; and (ii) the presently named persons jointly comprising the applicant of the [COMPANY] were confirmed to be (or to continue to be) authorised to act in that capacity. 21 Resolutions relating to the conditions and limits of the applicant's authority were also made by the [COMPANY]. Those decisions are not materially relevant to the issue of the amended [COMPANY] description. 22 I am thus satisfied that the correct legal process to amend a [COMPANY]'s composition, as required by the Act and applied by the Court in cases including Doctor (No 2), [NAME] v [NAME] [2006] FCA 1564 and [NAME] on behalf of the [NAME] v [NAME] (No 2) [2009] FCA 1180, has been followed by the [COMPANY]. 23 There will be orders broadly in terms of those set out in the interlocutory application. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 19 August 2014