Federal Court Authorises Replacement of Native Title Applicants

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME] on behalf of the [NAME] v [NAME] [2016] FCA 462 File number: WAD 6003 of 2000

Judge: [NAME] J

Date of judgment: 3 May 2016

Catchwords: NATIVE TITLE – application to replace [NAME] under s 66B of the Native Title Act 1993 (Cth) – whether [NAME] comprised of members of [COMPANY] – whether circumstances in s 66B(1)(a) established – whether [NAME] authorised by [COMPANY] – discretion to make order under s 66B

Legislation: Native Title Act 1993 (Cth) s 66B, s 66B(1), s 66B(1)(a), s 66B(2), s 251B, s 251B(b)

Cases cited: [NAME] on behalf of the [NAME] v [NAME] (No 2) [2014] FCA 590 [NAME] v [NAME] and [NAME] (2002) 194 ALR 278; [2002] FCA 1147 [NAME] v [NAME] [2012] FCA 2 [NAME] v [NAME] [2014] FCA 179 TJ v [NAME] [2015] FCA 818

Date of hearing: Determined on the papers

Registry: [NAME]: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 18

Counsel for the Applicant: [redacted] Solicitor for the Applicant: [redacted]

BETWEEN: [NAME] ON BEHALF OF [NAME]

AND: [NAME] & ORS Respondents

JUDGE: [NAME] J DATE OF ORDER: 3 MAY 2016

THE COURT ORDERS THAT:

1. Pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA), [NAME], [APPELLANT] and [APPELLANT] (collectively the [NAME]) replace [NAME] in this matter on the grounds that: (a) [NAME], [NAME] and [NAME] (names withheld for cultural reasons) are [NAME] (s 66B(1)(a)(ii)); (b) [NAME] is no longer authorised by [COMPANY] to make the claimant application and to deal with matters arising in relation to it (s 66B(1)(a)(iii)); and (c) the persons who comprise the [NAME] are authorised by [COMPANY] to make this interlocutory application under s 66B of the NTA and are authorised to bring the claimant application and to deal with matters arising in relation to it.

2. The heading of the claimant application be amended to reflect the names of the [NAME].

3. Service of the interlocutory application filed 15 April 2016 and supporting documentation on any respondent other than the State be dispensed with. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

[NAME] J: 1 [NAME], [APPELLANT] and [APPELLANT] (collectively the [NAME]) apply to jointly replace [APPELLANT], [NAME], [NAME] ([NAME]), [NAME] ([NAME]) and [NAME] ([NAME]) (collectively [NAME]) in this claimant application under the Native Title Act 1993 (Cth) (NTA). 2 An interlocutory application to this end was filed 15 April 2016 and, all other parties having indicated they did not object to the orders sought, was dealt with on the papers. 3 The [NAME] seeks to replace [NAME] on the basis that the last three named applicants at [1] are [NAME]. [ADDRESS]'s power to make such an order arises under s 66B of the NTA. By s 66B(2), the Court may make the order if it is satisfied that the grounds set out in subs (1) are established. Section 66B(1) provides that: (1) One or more members of the [COMPANY] ([COMPANY]) in relation to a claimant application, or of the [COMPANY] (also [COMPANY]) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace [NAME] 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, [NAME]: (i) the person consents to his or her [NAME] or removal; (ii) the person has died or become incapacitated; (iii) the person is no longer authorised by [COMPANY] 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 [COMPANY] to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by [COMPANY] to make the application and to deal with matters arising in relation to it. Note: Section 251B states what it means for a person or persons to be authorised by all the persons in [COMPANY] to deal with matters in relation to a claimant application or a compensation application. 5 The issues that arise on the determination of the interlocutory application are therefore: (1) Whether the [NAME] is comprised of members of [COMPANY] in this matter. (2) Whether the relevant [NAME] applicants are [NAME]. (3) Whether the [NAME] is authorised by [COMPANY] to make the claimant application and deal with matters arising in relation to it. (4) Whether it is appropriate that such order be made.

IS THE [NAME] OF MEMBERS OF [COMPANY]? 6 I am satisfied that the [NAME], which makes the interlocutory application, is comprised of persons who are members of [COMPANY].

ARE THE [NAME] APPLICANTS DEAD? 7 The relevant circumstance in this case under s 66B(1)(a), is whether [NAME] ([NAME]), [NAME] ([NAME]) and [NAME] ([NAME]) are dead. 8 I accept the evidence contained in the affidavit of [NAME] [APPELLANT] affirmed 14 April 2016 at [19], that they are.

IS THE [NAME]? 9 The reference to "authorised" in s 66B is a reference to authorisation, and withdrawal of authorisation, in accordance with a decision-making process under s 251B of the NTA. See the note to s 66B(1) and [NAME] v [NAME] and [NAME] (2002) 194 ALR 278 at [10] and [14]; [2002] FCA 1147. 10 Under s 251B(b), if there is no traditional decision-making process, then authorisation must be given in accordance with a decision-making process agreed to and adopted by the persons in [COMPANY]. This does not import a requirement that all members of [COMPANY] be involved in making the decision, or that the vote be a unanimous vote of every member; rather, it requires giving to persons whose whereabouts are known, and have capacity to authorise, a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process. See, for example, [NAME] on behalf of the [NAME] v [NAME] (No 2) [2014] FCA 590 at [13], and [NAME] v [NAME] [2012] FCA 2 at [30]-[31]. 11 The applicant relies on the evidence contained in the affidavits of [NAME] [APPELLANT] affirmed 14 April 2016 and [APPELLANT] affirmed 13 April 2016, concerning resolution 1 made at a community meeting on 1 and 2 March 2016. 12 A community meeting on 1 and 2 March 2016 authorised changes to the list of named applicants. The meeting had the usual attendance of [COMPANY] members. I find those [COMPANY] members present were an appropriate representation of the families that comprised the [COMPANY], including cultural elders. 13 I accept the meeting was originally convened by way of notice posted on 12 October 2015 to all members of the [COMPANY] whose contact details were known by [APPELLANT], in its capacity as the representative body. Additionally, further notices were posted to the same persons on 23 October 2015 and 11 February 2016, to notify them of the meeting being rescheduled. 14 I accept that, on the evidence, there is no traditional decision-making process that must be used in order for [COMPANY] to make decisions in relation to interlocutory applications of this nature.

Accordingly, authorisation could be given by way of a process that was agreed and adopted at the meeting. 15 I further accept that at the meeting, by way of a decision-making process agreed and adopted at that same meeting, the [COMPANY] resolved to make resolution 1, one of the consequences of which is this interlocutory application to replace [NAME]. 16 In the circumstances, I accept the [NAME] is authorised by [COMPANY] to make the claimant application and deal with matters arising in relation to it.

IS IT APPROPRIATE TO MAKE THE

ORDER? 17 Finally, s 66B(2) gives the Court a discretion as to whether or not in any case an order replacing an applicant should be made. See TJ v [NAME] [2015] FCA 818 at [107]; [NAME] v [NAME] [2014] FCA 179 at [25]. There is, in my view, no reason why the orders sought should not be made. 18 In these circumstances, the Court will make the orders set out in the interlocutory application filed 15 April 2016 at [1], [2] and [3]. (1) Pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA), [NAME], [APPELLANT] and [APPELLANT] (collectively the [NAME]) replace [NAME] in this matter on the grounds that: (a) [NAME], [NAME] and [NAME] (names withheld for cultural reasons) are [NAME] (s 66B(1)(a)(ii)); (b) [NAME] is no longer authorised by [COMPANY] to make the claimant application and to deal with matters arising in relation to it (s 66B(1)(a)(iii)); and (c) the persons who comprise the [NAME] are authorised by [COMPANY] to make this interlocutory application under s 66B of the NTA and are authorised to bring the claimant application and to deal with matters arising in relation to it. (2) The heading of the claimant application be amended to reflect the names of the [NAME]. (3) Service of the interlocutory application filed 15 April 2016 and supporting documentation on any respondent other than the State, be dispensed with. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 3 May 2016