Federal Court Approves Native Title Application Amendment Post-Death

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME] on behalf of the [NAME] v [NAME] [2011] FCA 1317 Citation: [NAME] on behalf of the [NAME] v [NAME] [2011] FCA 1317

Parties: [NAME] [NAME] AND [NAME] ON BEHALF OF THE [NAME] v [NAME], CAIRNS REGIONAL COUNCIL, YARRABAH ABORIGINAL SHIRE COUNCIL, [NAME]) [COMPANY] [PHONE], [APPELLANT] and [NAME], [APPELLANT] [NAME], [NAME], [NAME], [NAME] AND [NAME] number: QUD 6013 of 2001

Judge: [NAME] of judgment: 14 November 2011

Date of hearing: 14 November 2011

Place: [APPELLANT]: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 6

Solicitor for the Applicant: [redacted]

Counsel for the [APPELLANT]: [[APPELLANT]]

Solicitor for the [APPELLANT]: [[APPELLANT]]

Counsel for [RESPONDENT] [APPELLANT]: [[APPELLANT]] [APPELLANT] did not appear

Solicitor for the [APPELLANT]: [[APPELLANT]]

Solicitor for the [APPELLANT]: [NAME] of [NAME]

Solicitor for the [APPELLANT]: [[APPELLANT]]

Counsel for the [APPELLANT]: The [APPELLANT] did not appear

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 6013 of 2001

BETWEEN: [NAME] [NAME] AND [NAME] [NAME] ON BEHALF OF THE [APPELLANT] [NAME]

Applicant

AND: [NAME]

[APPELLANT] [APPELLANT] [APPELLANT]

[NAME]) [COMPANY] [PHONE]

[APPELLANT]

[NAME], [NAME], [NAME], [NAME], [APPELLANT] [NAME] AND [NAME]

[APPELLANT] OF ORDER: 14 NOVEMBER 2011 [APPELLANT]

THE COURT ORDERS THAT:

1. leave be given to amend the Form 1 application for determination of Native Title in this matter in accordance with the further amended Form 1 which forms Annexure MEED3 to the affidavit of [NAME] filed contemporaneously herewith to this interlocutory application; and 2. time for bringing this interlocutory application be abridged to the extent necessary. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 6013 of 2001

BETWEEN: [NAME] AND [NAME] ON BEHALF OF THE [APPELLANT] [NAME]

Applicant

AND: [NAME]

[APPELLANT] [RESPONDENT] [APPELLANT] [APPELLANT]

[NAME]) [COMPANY] [PHONE]

[APPELLANT] [APPELLANT]

[RESPONDENT] [APPELLANT]

[RESPONDENT] [APPELLANT]

[RESPONDENT] [APPELLANT] [APPELLANT]

[NAME], [NAME], [APPELLANT] AND [NAME], [NAME], [APPELLANT] [NAME] AND [NAME]

[APPELLANT]

JUDGE: [NAME]: 14 NOVEMBER 2011 PLACE: [APPELLANT] FOR

JUDGMENT 1 In these proceedings the [NAME] seek a Native Title determination pursuant to the Native Title Act 1993 (Cth) (the "Act"). Prior to 23 November 2004 the applicant consisted of three people; Mr [APPELLANT], Mr [APPELLANT] and Mr [NAME]. At a meeting held on 23 November 2004 it was proposed that [NAME] be removed as a member of the [COMPANY]. The [COMPANY] decided that such decisions were for the elders. The elders held a separate meeting and decided that Mr [NAME] should be removed. They then informed the [COMPANY] accordingly. Subsequently, on 31 March 2005 I made an order which reflected such removal. In particular, I ordered that the applicant hereforth consist of the following persons acting jointly: [NAME]; and [NAME]. 2 Mr [NAME] died on 5 August 2010. Since that time there has been at least one meeting of the [COMPANY] to authorise Indigenous Land Use Agreements ("ILUAs") in connection with the Native Title application. There have also been numerous meetings of various working groups concerned with aspects of the [NAME]. However, until the present time no formal step has been taken to change the composition of the applicant. The affidavit of [APPELLANT] filed in support of the substantive application indicates that Mr [NAME] represented his family as an elder. 3 I am now asked by Mr [APPELLANT] to remove Mr [APPELLANT] as an applicant so that the application can proceed to a consent determination, presently scheduled for December of this year. It is said that Mr [NAME] is entitled to make the application, exercising the powers conferred upon him as one of the persons comprising the applicant. Authority for this proposition is said to be derived from the decision of Mansfield J in [NAME] v State of South Australia [2010] FCA 743 and [NAME] on behalf of the [NAME] #1 v [NAME] [2011] FCA 690, a decision of Logan J. Both decisions seem to me to be, however, inconsistent with a decision of Siopis J in Sambo & [NAME] v [NAME] & [NAME] (2008) 172 FCR 271. The matter was also addressed in earlier decisions of Spender and Kiefel JJ, but those decisions predated amendments to s 66B of the Act which, to my mind, render them of little assistance for present purposes. 4 Unfortunately I prefer the reasoning of Siopis J to that of [NAME] and [NAME] JJ. In my view s 66B now prescribes the method to be adopted in seeking to change the composition of the applicant in a Native Title application. I can see no justification for implying a power vested in a surviving member of an applicant to change its composition merely upon the basis that the terms of the applicant's existing authorization do not expressly exclude such an application from the extent of its authority. I accept that a [COMPANY] could authorise a surviving member of the applicant to make such an application, but I see no proper basis for inferring that this was the intention of the [COMPANY]. Were the matter to be resolved purely upon the evidence as to the terms of the original authorization I would be inclined to the view, following the decision of Siopis J, that the [COMPANY] must authorise any application for the removal of Mr [APPELLANT] as an applicant or, more correctly, authorizing Mr [APPELLANT] to act alone. 5 However, as I have said, there has been a meeting of the [COMPANY] since the death of Mr [NAME]. I have no difficulty in inferring that those attending were aware of his death. In those circumstances it is reasonable to infer that they intended that Mr [APPELLANT] continue as the sole applicant and authorized him to take such steps as might be necessary in order to regularise his position. For that reason I am willing to proceed upon the basis that he has been authorised pursuant to s 66B to make the present application. I proceed accordingly. It may be arguable that the conduct of the members of the [COMPANY], in allowing the matter to proceed, indicates their understanding of the original authorization, but it is not necessary to consider that matter further. 6 There will be an order in terms of para 1 of the interlocutory application and a further order that time for bringing the interlocutory application be abridged to the extent necessary. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 15 December 2011