Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland
[2019] FCA 651
•10 May 2019
FEDERAL COURT OF AUSTRALIA
Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2019] FCA 651
File number: QUD 27 of 2019 Judge: MURPHY J Date of judgment: 10 May 2019 Catchwords: NATIVE TITLE – proposed amendment to description of claim group - whether authorisation by claim group required – whether authorisation process sufficient – amendment allowed
NATIVE TITLE – replacement of applicant - authorisation of new applicant under s 66B of the Native Title Act 1993 – whether authorisation process valid in accordance with the requirements of s 251B – whether new applicant authorisedLegislation: Native Title Act 1993 Cases cited: Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1560
Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336
Akiba on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 4) [2008] FCA 1446
Akiba v Commonwealth of Australia (2013) 250 CLR 209; [2013] HCA 33
Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643
Atkins v State of Western Australia [2013] FCA 773
Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373
Commonwealth v Akiba (2012) 204 FCR 260; [2012] FCAFC 25
Dale v State of Western Australia (2011) 191 FCR 521; [2011] FCAFC 46
Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746
Drury v Western Australia (2000) 97 FCR 169; [2000] FCA 132
Forrest v State of Western Australia [2014] FCA 876
Gomeroi People v Attorney General of New South Wales [2017] FCA 1464
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31
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
Lovett on behalf of the Gunditjmara People v State of Victoria (No 3) [2011] FCA 867
Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599
P.C. (name withheld for cultural reasons) on behalf of the Njamal People v State of Western Australia [2007] FCA 1054
TJ (on behalf of the Yindjibarndi People) v State of Western Australia (2015) 242 FCR 283; [2015] FCA 818
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255
Date of hearing: 30 April 2019 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 63 Counsel for the Applicant: Mr K Barlow QC and Mr G Carter Solicitor for the Applicant: Dillon Bowers Counsel for the State of Queensland: Ms N Kidson Solicitor for the State of Queensland: Crown Law Solicitor for the commercial fishing parties: Mr P Gore of Gore & Associates Solicitor for the Torres Strait Regional Authority: Mr G Scott of TSRA Solicitor for Jeffrey Bosuen: Ms L Cameron of Marrawah Law Pty Ltd Counsel for the Commonwealth of Australia: Ms R Webb QC Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for Bernard Charlie: Mr D Yarrow Solicitor for Bernard Charlie: Cape York Land Council REASONS FOR JUDGMENT
QUD 27 of 2019 BETWEEN: LEO AKIBA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM
Applicant
AND: STATE OF QUEENSLAND & ORS
Respondents
JUDGE:
MURPHY J
MURPHY J:
INTRODUCTION
By an interlocutory application filed 31 January 2019 in proceeding QUD 27/2019, being the Torres Strait Regional Seas Native Title Claim (Part B) (the Sea Claim Part B), the applicant, Mr Leo Akiba, sought orders including:
(a)an order pursuant to s 64 of the Native Title Act 1993 (the Act) and division 8.3 of the Federal Court Rules 2011 (the Rules), that leave be granted to amend the claimant application, primarily so as to alter the description of the native title claim group (the claim group amendment application); and
(b)an order pursuant to s 66B of the Act and division 8.3 of the Rules, that Mr Lui Ned David, Mr Alick Tipoti, Mr Troy Laza, Mr Iona Manas, Mr David Bosun, Mr Frank N Fauid, Mr John Morris, Mr Kabay Tamu, Mr Ron Day, Mr Maluwap Nona, Mr Kapua Gutchen and Mr Jerry Dixie Stephen (together, the prospective applicant) jointly replace Mr Akiba as the applicant (the replacement application).
None of the respondents opposed the claim group amendment application per se, but the State of Queensland initially argued that the proposed description of the native title claim group, which describes the claim group by reference to identified Torres Strait Island communities rather than by descent from named apical ancestors, does not reflect the description of the claim group in the determination of Part A of the Sea Claim (Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643 (Akiba No 3)) and will create uncertainty. The State contended that the description should only be amended in a way that is consistent with the Part A determination. To address the State’s concerns, the applicant proposed a further change to the claim group description by the insertion of a new paragraph 14A in the proposed amended application. The State accepted that proposal in the course of the hearing.
For the reasons I explain below it is appropriate to grant leave to amend the current Form 1 in the form of the proposed Fourth Amended Torres Strait Regional Seas Native Title Claim Claimant Application (Fourth Amended Claimant Application) provided by the applicant to the Court and the parties on 2 May 2019.
In relation to the replacement application, Mr Bernard Charlie, one of the respondents, initially opposed the application on the basis that the original application was not properly authorised, but he withdrew that opposition shortly prior to the hearing. He also withdrew an interlocutory application filed on 6 November 2018 which sought summary dismissal or striking out of the claimant application in Sea Claim Part B on grounds that include want of authorisation. For the reasons I explain, it is appropriate to make an order under s 66B of the Act to replace Mr Akiba with the prospective applicant.
THE PROCEDURAL HISTORY
The Torres Strait Regional Seas Native Title Determination Claimant Application (QUD 6040/2001) (the Sea Claim) was lodged in 2001. On 23 September 2008 Finn J made orders to separate the Sea Claim into two parts to be called Sea Claim Part A and Sea Claim Part B, with the former to be considered separately and in advance of the latter: see Akiba on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 4) [2008] FCA 1446.
On 2 July 2010 Finn J held that native title exists over most of the waters of Sea Claim Part A (the Part A Determination) (see Akiba No 3) and made final orders on 23 August 2010.
On 14 March 2012 the Full Court, by majority, allowed an appeal against the Part A Determination: Commonwealth v Akiba (2012) 204 FCR 260; [2012] FCAFC 25. Mr Akiba appealed that decision and a cross-appeal was also filed. On 7 August 2013 the High Court allowed the appeal in part and dismissed the cross-appeal: Akiba v Commonwealth of Australia (2013) 250 CLR 209; [2013] HCA 33.
In August 2013, shortly after the High Court decision, Greenwood J referred Sea Claim Part B and related proceedings to a Deputy Registrar for case management. Mortimer J summarised the steps taken in the application since then in Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336 (Akiba) at [16]-[53], and I need not reiterate that. It suffices to note that her Honour identified and sought to address some serious delay in the progress of the application.
Mr Akiba’s position
When the Sea Claim was filed in 2001 the applicant comprised four persons including Mr Akiba, each of whom represented one of four regional cluster groups of Torres Strait Island communities, being living descendants of particular apical ancestors.
By July 2010, when Finn J determined that native title existed in most of Sea Claim Part A, only two of the originally named persons making up the applicant were still alive.Mr Akiba is now 82 years old and is sadly the only surviving member of the applicant. He is from Saibai in the Torres Strait, in the northern part of the area covered by the Part A Determination, and he is only authorised to represent the Top Western islands, which comprise Saibai, Boigu and Dauan: see Akiba No 3 at [919]-[924]. He says that he “cannot talk for the Part B Claim sea country because it is not my sea country”: see Akiba at [12].
In Akiba (at [167]) Mortimer J considered it necessary for an authorisation meeting to occur followed by a s 66B application. Her Honour said:
…It is common ground that Mr Akiba, while the remaining individual constituting the applicant, has no traditional authority to speak for the land and waters covered by the Part B Sea Claim. The people who, in accordance with traditional law and custom speak for those lands and waters are represented, or at least much more likely to be represented, by all or some of the RNTBC Chairs. That is why I have said, as a matter of urgency, there needs to be an authorisation meeting and a s 66B application.
The orders for an authorisation process and a replacement application
In late November 2017 Mortimer J conducted a three-day case management hearing on Thursday Island. On 21 November 2017, in the course of the case management hearing, her Honour ordered that Mr Ned David, Ms Garagu Kanai and Mr Malawup Nona (the Three Indigenous Respondents) be joined as respondents to the proceeding. On 22 November 2017 her Honour made directions which required that the process for authorisation of a new applicant for Sea Claim Part B be completed by 29 March 2018, for any replacement application under s 66B of the Act to be filed by 12 April 2018.
There was however some further delay. On 19 December 2017 Mortimer J made prescriptive orders for an authorisation process and an application to substitute a new applicant: Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1560. On 12 June 2018 Mortimer J made further prescriptive orders which required the Three Indigenous Respondents, Mr Akiba and the Torres Strait Regional Authority (TSRA) to complete steps including that:
(a)the TSRA commission anthropologists to undertake any further research necessary to identify the persons who, according to their traditional laws and customs, hold the common or group rights and interests in relation to those parts of the Sea Claim Part B area known as the “Western Overlap area” and the “Eastern Overlap area”, for the purpose of the development of a claim group description for the Part B Sea Claim;
(b)based on this research, Mr Akiba and the Three Indigenous Respondents, with the assistance of the TSRA, develop a claim group description for the Western Overlap area and the Eastern Overlap area by 31 August 2018;
(c)information sessions be convened at which Mr Akiba, the Three Indigenous Respondents and the TSRA present information and answer queries, to be held in agreed Torres Strait Island and mainland locations by no later than 7 October 2018;
(d)an authorisation meeting (or meetings) be convened at which the claim group consider and authorise such steps as they determine necessary or desirable to progress determinations of native title in the Sea Claim Part B Western Overlap and Eastern Overlap areas and consider the replacement of Mr Akiba as applicant, by no later than 21 October 2018; and
(e)any application arising from the authorisation meeting or meetings, including but not limited to an application under s 66B of the Act, be filed and served by 16 November 2018 with submissions in support by 23 November 2018.
On 5 November 2018 Mortimer J allowed an extension of time for compliance with some of these orders.
THE PROPOSED AMENDMENT TO THE CLAIM GROUP DESCRIPTION
The applicant initially sought leave to amend the claim group description in the form of a proposed Fourth Amended Torres Strait Regional Seas Native Title Claim Claimant Application annexed as “JMD-4” to an affidavit of Mr Jeffrey Dillon made 31 January 2019. The State did not oppose an amendment to the claim group description but it argued that the proposed amended claim group description would give rise to uncertainty because, unlike the Part A Determination, it identified the claim group by reference to identified Torres Strait Island communities rather than by descent from named apical ancestors. The State said that the claim group description should only be amended in terms which are consistent with the Part A Determination. For its part, the Commonwealth of Australia did not oppose the proposed amended claim group description. However, it reserved its position as to the appropriate form of any description of the native title holders in the event a determination of native title is made in the future.
During the hearing, in an effort to address the State’s concerns, the applicant proposed adding a new paragraph 14A to the proposed amended application, which the State accepted and withdrew its opposition. On 2 May 2019 the applicant provided the proposed Fourth Amended Claimant Application which includes paragraph 14A to the Court and the parties.
The applicant relied upon:
(a)two affidavits of Mr Jeffrey Martin Dillon, the solicitor for the applicant, affirmed 31 January 2019 (the first Dillon affidavit) and 16 April 2019 (the second Dillon affidavit), which essentially concern the authorisation by the claim group of the proposed amendment to the claim group description; and
(b)an affidavit of Mr Akiba affirmed 8 December 2018.
The proposed amendments
The salient parts of the proposed amendments to the claim group description in the claimant application are as follows, with the changes marked up:
(a)in paragraph 1 the definition of “the ancestors” is amended as follows:
“the ancestors” means the persons
whose names arewho are apical ancestors of the members of the island communities set out in Attachment A.(b)in Schedule A, paragraphs 13-17 of the description of the native title claim group is amended as follows:
13.The native title claim group (sea claim group) comprises members of the island communities
the living descendants of the personslisted in Attachment A, each of whom iswasa Torres Strait Islander.14.The members of the sea claim group are the biological and socially recognised members of their respective island communities
descendants of the ancestors.14AThe membership of the island communities comprising the sea claim group was determined by Finn J in Orders 4(1)(a) to (i) and Schedule 5, clauses 2(a) to (i) of the Part A determination.
15.Generally, the members of the sea claim group, the ancestors and deceased descendants of the ancestors are shown in the genealogies.
16.Because of the nature and extent of adoptions within the sea claim group it is impracticable to identify and show in the genealogies all relevant biological and adoptive connections of each member of the sea claim group.
17The genealogies show many but not all socially relevant connections between the persons shown in the genealogies.
(c)Attachment A is amended as follows:
The island communities referred to in paragraph 13 of the Application are:
(a)Meriam Le;
(b)Erubam Le;
(c)Ugarem Le;
(d)Masigalgal;
(e)Porumalgal;
(f)Warraberalgal;
(g)Iamalgal;
(h)Badulgal; and
(i)Mualgal.
The persons referred to in paragraph 13 of the Application are:[Here the proposed amended claimant application deletes the names of the apical ancestors listed in the current Form 1 application.]
(d)Schedule 2 is amended as follows:
SCHEDULE 2 NATIVE TITLE HOLDERS
The native title is held by the members
descendantsof the following island communitiespersons:(a)Meriam Le;
(b)Erubam le;
(c)Ugarem Le;
(d)Masigalgal;
(e)Porumalgal;
(f)Warraberalgal;
(g)Iamalgal;
(h)Badulgal; and
(i)Mualgal.
[Here the proposed amended claimant application deletes the names of the relevant apical ancestors listed in the current Form 1 application.]
First, the proposed amendments operate to remove members of the island communities of Gumulgal, Saibailgal, Boigulgal and Dauanalgal from the claim group for Sea Claim Part B. That change is uncontentious.
Second, putting the new paragraph 14A to one side, the proposed amendments would operate so that membership of the Sea Claim Part B claim group is determined by reference to the nine island communities listed in Attachment A, as amended, rather than by reference to their being the living descendants of the named apical ancestors listed in Attachment A, as currently drafted.
However, new paragraph 14A acknowledges that membership of the relevant island communities comprising the Sea Claim Part B claim group is as determined by Finn J in Order 4(1)(a) to (i) and Schedule 5, clause 2(a) to (i) of the Part A Determination. Order 4(1)(a) to (i) states that native title is held by the members of 9 identified island communities (being those in the amended Sea Claim Part B claim group). Clause 2(a) to (i) of Schedule 5 provides that the members of the identified island communities referred to in Order 4 are the descendants of listed named apical ancestors for each of the identified island communities.
In submissions the applicant accepted that the Part A Determination was, in effect, a judgment in rem binding on the world at large, which conclusively determined the composition of the island communities for both Part A and B of the Sea Claim: see Dale v State of Western Australia (2011) 191 FCR 521; [2011] FCAFC 46 at [92] (Moore, North and Mansfield JJ). He also accepted that the proposed amended claim group for Sea Claim Part B must therefore be a subset of the persons determined to be native title holders by the Part A Determination. The amended claim group description therefore operates so that claim group membership is determined by reference to membership of one of the identified island communities and also descent from one of the named apical ancestors.
Whether an application to amend a claim group description must be authorised by the claim group
Under section 62A of the Act, in the case of a claimant application, the applicant may deal with all matters arising under the Act. Such matters may include the amendment of the application from time to time: see Drury v Western Australia (2000) 97 FCR 169; [2000] FCA 132 at [12] (French J); P.C. (name withheld for cultural reasons) on behalf of the Njamal People v State of Western Australia [2007] FCA 1054 (PC) at [40] (Bennett J).
Section 61(1) of the Act provides that the persons who may make a native title determination application 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 group.
Section 251B sets out two ways in which an application may be authorised:
Authorising the making of applications
For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a)where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b)where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
The applicant notes that the Act does not specifically require authorisation by the claim group before an amendment to the claim group description can be made, and tentatively submitted that the power to seek an amendment is vested in the applicant under s 62A such that the applicant may amend the description without authorisation. I disagree.
The authorities show that an amendment to the description of a claim group so as to alter the composition of the group requires authorisation by the claim group. In Lovett on behalf of the Gunditjmara People v State of Victoria(No 3) [2011] FCA 867 (Lovett) at [9] North J said that while it was not entirely clear whether the requirement under s 251B that an application be authorised by the claim group applied to an amendment to the description of the claim group, the “better view” was that it did. In Atkins v State of Western Australia [2013] FCA 773 (Atkins) at [14] McKerracher J agreed with the view expressed by North J on this point. His Honour said that s 251B is a useful guide to the process to be used by a claim group to approve an amendment to its composition: Atkins at [14] citing Lovett at [8]. In Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746 at [57] Reeves J said:
Section 61 of the Act makes it clear that the authority vested in the authorised applicant comes exclusively from the native title claim group on whose behalf the native title determination application is made. Further, the validity of that authority fundamentally relies upon the native title claim group following the authorisation process set out in s 251B of the Act. It follows that, if an existing claim group 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 native title claim group 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…
The two-step process proposed by Reeves J was approved and adopted in Forrest v State of Western Australia [2014] FCA 876 at [7], [12]-[13] and [22] (Gilmour J).
However little turns on any controversy in this regard in the present case because the applicant undertook an authorisation process which was in my view consistent with s 251B.
The relevant principles for authorisation
There is no requirement under the authorisation process in s 251B for every person in the claim group to be in attendance, nor for every person in attendance to agree: see Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 at [1265] (Lindgren J) citing 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 (Lawson) (Stone J). Rather “[i]t 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 at [25], affirmed in a number of decisions including Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [39] (Weribone) (Rares J).
Notice of an authorisation meeting must be expressed in a form and published in a manner that is likely to result in all the members of the claim group being offered a reasonable opportunity to judge whether they are among those entitled to attend and vote, and to decide whether to attend and participate in the meeting: Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 (Burragubba) at [30]-[32] (Reeves J) citing Weribone at [40] and [41]; TJ (on behalf of the Yindjibarndi People) v State of Western Australia (2015) 242 FCR 283; [2015] FCA 818 at [120] (Rares J). It must give fair notice to the members of the claim group of the business to be dealt with at the meeting, so that they can make an informed decision whether or not to attend: Burragubba at [30]-[32].
The adequacy of the notice must be assessed objectively but taking into account any particular meaning which, considered in context, it may have conveyed to an ordinary reasonable reader of the notice: Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [50] (White J). The notice should not be scrutinised in an overly technical or pedantic way. A standard of perfection is not required and a robust approach should be taken in determining whether or not the claim group has made any decision about authorisation: Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 at [54] (Rangiah J) citing Lawson at [54].
The authorisation process and first authorisation meeting
Mr Dillon’s first and second affidavits show that the following steps were undertaken in accordance with the 12 June 2018 Orders.
Anthropological research
Dr Kevin Murphy completed the required anthropological research in regard to the Western Overlap area and Dr John Burton completed the required anthropological research for the Eastern Overlap area in October and November 2018. Mr Akiba, the Three Indigenous Respondents and the TSRA then developed a proposed claim group description for the amended Sea Claim Part B application consistent with Dr Murphy’s and Dr Burton’s expert opinions. The outcome of that research was that members of 9 of the 13 island communities in Sea Claim Part A have rights to native title in relation to the Sea Claim Part B area, whereas members of the remaining 4 island communities do not. Senior counsel for the applicant informed the Court that the proposed amendment to the claim group description by reference to island communities rather than apical ancestors also reflected the anthropological advice.
The public notices and notification regime
Mr Akiba, the Three Indigenous Respondents and the TSRA published public notices inviting members of the Sea Claim group (as currently described) to attend information meetings and authorisation meetings. The notice informed claim group members of information sessions to be held on various Torres Strait islands on dates and at venues to be advised on the TSRA website and Facebook page, and of authorisation meetings to be held on Saturday, 8 December 2018 at 9:30 am at Port Kennedy Association Hall on Thursday Island.
The public notice:
(a)described the purpose of the authorisation meeting as follows:
Authorisation Meeting
The purpose of the Authorisation Meeting, which has been ordered by the Court, is for the Sea Claim Group to decide whether to:
•change the Sea Claim Group so that it only includes claimants for the Part B area; and
•appoint a new applicant from the claimants for the Part B area.
(b)set out the agenda as follows:
The Authorisation Meeting will be held in two parts:
Meeting 1 – the Sea Claim Group will decide whether to change the claim group description to Meriam, Erubam Le, Ugarem Le, Masigalgal, Porumalgal, Warraberalgal, Iamalgal, Mualgal, and Badugal only.
Meeting 2 – the Sea Claim Group as decided at Meeting 1 will:
(a)decide whether to replace the current applicant and determine the extent of any new applicant’s authority; and
(b)consider and authorise such steps as they determine necessary or desirable to progress determination(s) of native title in relation to the Western Overlap and Eastern Overlap.
(c)set out the current Sea Claim claim group description by stating that it comprises the members of each of 13 named island communities who are biologically and socially recognised descendants of a lengthy list of named apical ancestors; and
(d)stated the following under the heading “Effect of Proposed Amendment to Sea Claim Group Description”:
If a determination of native title is made, the claim group description will set out who are recognised as the native title holders of Part B of the Sea Claim. If the current description of the Sea Claim Group is amended to remove the Gumulgal, Saibailgal, Boigulgal and Dauanalgal communities they will not be recognised as determined native title holders for Part B (but will continue to hold native title under the determination for Part A).
The notices were published in The Cairns Post, The Courier Mail, The Townsville Bulletin and The Daily Mercury on 1 and 2 November 2018, and in the Torres Strait News on 8 November 2018. Radio advertisements for the information sessions and the authorisation meetings were broadcast on 88 occasions on TSIMA Radio 4MW which covers the Torres Strait Islands, the Northern Peninsula Area and the Western Province of Papua New Guinea. The times, dates and venues for the information sessions and authorisation meetings were published on the TSRA website and Facebook page. The TSRA also arranged for the public notices to be placed on island community noticeboards and displayed within island council offices. Ms Kanai, one of the Three Indigenous Respondents, interacted with Torres Strait Island community members over Facebook and answered their queries regarding the authorisation process.
The information meetings and authorisation meetings
Twenty information sessions were held at 18 separate locations on Torres Strait islands and in mainland population centres. A preliminary information session on Thursday Island on 2 November 2018 for the chairpersons of the relevant Registered Native Title Bodies Corporate (RNTBCs), was followed by information sessions presented by the relevant community RNTBC chairperson and/or TSRA Board member and attended by a roster of legal representatives, Mr Akiba and the Three Indigenous Respondents. Dr Burton also attended community meetings for the island communities relevant to the Eastern Overlap area, where he provided additional anthropological information and discussed it with claim group members.
Members of all 13 relevant Torres Strait Island communities were present at the information sessions. It was agreed by consensus by all persons in attendance at the information sessions that each island community identified itself by its community name, each island community was able to identify who is and who is not a member of its community, and the Sea Claim group (as currently described) is able to identify who is and who is not a member of that group by reference to island communities only.
The authorisation meetings were held at Port Kennedy Association Hall on Thursday Island at 9:30 am on 8 December 2018, one after the other. Each of the meetings was co-facilitated by Dr Lisa Strelein of the Australian Institute of Aboriginal and Torres Strait Islander Studies and Mr Murrandoo Yanner of the Carpentaria Land Council Aboriginal Corporation, and was attended by Mr Akiba, the Three Indigenous Respondents and the TSRA together with their respective legal representatives, and also Dr Burton and Dr Murphy.
The first authorisation meeting
As noted above, the first authorisation meeting was for members of the claim group (as currently described) to decide whether to amend the group description to only include native title claimants for the Sea Claim Part B area. Each claim group member completed and signed a registration attendance form that set out their name, personal details, island community and/or apical ancestor/s. Importantly, Dr Burton and Dr Murphy assisted to ensure that all those attending the meeting were members of the claim group (as currently described).
The minutes of the first meeting record the name and island community of each of the 96 attendees, and that all resolutions were provided to the meeting participants in hard copy and displayed via PowerPoint. Each resolution was also read out aloud by the facilitators before voting, and some amendments were made to the pre-prepared resolutions as requested by the members present.
The following relevant resolutions were passed, without dissent:
Resolution 1
No traditional decision-making process that must be complied with
The members of the native title claim group present at this meeting confirm that there is no process of decision-making that, under the traditional laws and customs of Torres Strait Islanders, must be complied with in relation to things [of] the nature or kind as the matters to be decided at this meeting (for example changing the claim group description for Part B of the Sea Claim).
Resolution 2
Agreed to and adopted decision making process
The members of the native title claim group present at this meeting resolve that the process for making a decision at this meeting is as follows:
•a decision which is proposed to be made will be put in the form of a clearly worded written resolution;
•the proposed resolution will be presented to the meeting;
•the resolution must be moved and seconded before it is considered;
•anybody who will be affected by a decision has a right to be informed about the matter and a right to express an opinion on it;
•some people may have more authority within their island community than others, which relates to status as either elder or descendant of a particular person who themselves was a leader of their group, or both;
•decisions should be made on the basis of general consensus but this means a significant majority, not 100% agreement is required;
•the decisions will be respected by everyone;
•the Facilitators will ensure that the meeting has a reasonable opportunity to discuss and consider a proposed resolution and determine whether a significant majority is in favour of it, which will be recorded in the minutes; and
•each island community may determine the manner in which they participate in making decisions about the business of the meeting, including whether they will participate by island community or cluster group.
Resolution 3
Identify the native title claim group
The members of the native title claim group present at this meeting confirm that only those persons who are members of the:
•Meriam Le;
•Erubam Le;
•Ugarem Le;
•Masigalgal;
•Porumalgal;
•Warraberalgal;
•Iamalgal;
•Mualgal;
•Badulgal;
•Gumulgal;
•Saibailgal;
•Boigulgal; and
•Dauanalgal;
island communities and/or who are the biologically and socially recognised descendants of the apical ancestors listed below are in attendance at the meeting:
[A list of the named apical ancestors is then set out.]
Resolution 4
Representation and notice
The members of the native title claim group present at the meeting are satisfied that:
•the people present at the meeting are sufficiently representative of the native title claim group currently described in the Torres Strait Regional Seas Claim (QUD6040/2001) to make authoritative decisions about amending the native title determination application;
•sufficient notice was given of this meeting to the members of the native title claim group to enable authoritative decisions to be made today about the Torres Strait Regional Seas Claim.
Resolution 5
Informed Discussion
The members of the native title claim group present at this meeting confirm that there has been reasonable opportunity for informed discussion about the matters to be decided at this meeting.
Resolution 6
Amend claim group description
The members of the native title claim group present at this meeting resolve that the claim group for the Torres Strait Regional Seas Claim be described as the members of the following island communities:
• Meriam Le;
• Erubam Le;
• Ugarem Le;
• Masigalgal;
• Porumalgal;
• Warraberalgal;
• Iamalgal;
• Badulgal; and
• Mualgal.
Mr Dillon’s evidence is supported by the affidavit of Mr Akiba, which also sets out the matters required by s 62(1)(a) of the Act. Mr Akiba confirms that the attendees at the meeting adopted and complied with a decision-making process, and notes that they authorised him to do all things necessary to amend the description of the native title claim group as proposed.
THE SECTION 66B APPLICATION
Mr Akiba sought an order for the 12 persons comprising the prospective applicant to jointly replace him as the applicant. He relied upon the first and second Dillon affidavits and upon affidavits made on 8 December 2018 by each of the 12 members of the prospective applicant.
Section 66B of the Act
Section 66B relevantly provides:
Replacing the applicant
Application to replace applicant in claimant application
(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;
(ii) the person has died or become incapacitated;
(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.
…
The authorisation process and second authorisation meeting
I have previously set out Mr Dillon’s evidence as to the public notification regime including information sessions, which included notice that the purpose of the second authorisation meeting was for members of the claim group as amended to decide whether to replace Mr Akiba as applicant and to authorise such steps as they decided were necessary or desirable to progress determination(s) of native title in relation to the Sea Claim Part B area. Mr Dillon’s evidence regarding the second authorisation meeting is as follows.
As at the first meeting, attendees at the second meeting completed and signed a registration attendance form, and Dr Burton and Dr Murphy assisted with ensuring all those attending the meeting were members of the amended claim group for the Sea Claim Part B area.
The minutes of the second meeting record the name and island community of each of the 53 attendees at the second meeting and show that they are a sub-set of the attendees at the first authorisation meeting. None of the attendees were members of the four island communities removed from the amended claim group by the resolution passed at the first meeting, i.e. members of the Gumulgal, Saibailgal, Boigulgal or Dauanalgal island communities.
At the beginning of the meeting the members of the nine island communities comprising the proposed amended claim group broke into groups to consider and nominate persons to jointly comprise the applicant for Sea Claim Part B. They then reconvened and considered and voted on the resolutions. All resolutions were provided to the meeting participants in hard copy and displayed via PowerPoint. Each resolution was also read out aloud by the facilitators before voting, and some amendments were made to the pre-prepared resolutions as requested by the members present. Each resolution was set out in the minutes annexed to Mr Dillon’s first affidavit, and was passed without dissent.
Resolutions 1 and 2, dealing with decision-making processes, were in the same form as that set out above, although referring to the amended claim group and authorising a new applicant.
Resolution 3 was in the following terms:
Resolution 3
Identify the amended native title claim group
[The] members of the amended native title claim group present at this meeting confirm that only those persons who are members of the island communities listed below are in attendance at this meeting:
•Meriam Le;
•Erubam Le;
•Ugarem Le;
•Masigalgal;
•Porumalgal;
•Warraberalgal;
•Iamalgal;
•Badulgal; and
•Mualgal.
Resolutions 4 and 5, dealing with representation and notice and informed discussion, were also in the same form as above although referring to the amended claim group and authorising a new applicant.
Resolutions 6, 7, 8 and 9 were as follows:
Resolution 6
Terms of appointment of the replacement applicant
The members of the amended native title claim group present at this meeting resolve that the authority of those persons authorised as applicant is subject to the terms and conditions set out in the document titled “Torres Strait Regional Seas Claim (QUD6040/2001) Applicants’ Protocol”, tabled at this meeting and attached to these resolutions.
Resolution 7
Authorise replacement applicant
The members of the amended native title claim group present at this meeting authorise the following members of the amended native title claim group to make the application for a determination of native title known as the Torres Strait Regional Seas Claim (QUD6040/2001) and to deal with matters arising in relation to it, in place of the existing applicant, Mr Leo Akiba:
Badulgal and Mualgal:
Mr Alick Tipoti (Badulgal),
Mr Troy Stow (Badulgal)
Mr Iona Manas (Mualgal)
Mr David Bosun Jnr (Mualgal)
Kulkalgal:
Mr Frank Fauid (Porumalgal)
Mr John Morris (Masigalgal)
Mr Lui Ned David (Iamalgal)
Mr Kabay Tamu (Warraberalgal)
Kemer Kemer Meriam:
Mr Ron Day (cluster)
Mr Maluwap Nona (Meriam Le)
Mr Kapua Gutchen (Erubam Le)
Mr Jerry Stephen (Ugarem Le).
Resolution 8
Interlocutory application
The members of the amended native title claim group present at this meeting authorise the current Applicant, Mr Leo Akiba, to make [an] application to the Federal Court for leave to amend the Torres Strait Regional Seas Claim (QUD 6040/2001):
•to describe the claim group as the members of the following island communities: Meriam Le; Erubam Le; Ugarem Le; Masigalgal; Porumalgal; Warraberalgal; Iamalgal; Badulgal; and Mualgal.
•to seek orders pursuant to s 84D(4)(a) of the Native Title Act 1993 (Cth) (NTA) to hear and determine the application despite any defect in authorisation.
Resolution 9
Authority of existing applicant
The members of the amended native title claim group present at this meeting authorise the current Applicant, Mr Leo Akiba, to deal with matters arising in relation to the Torres Strait Regional Seas Claim until such time as orders are made in accordance with the interlocutory application referred to in Resolution 8.
Each member of the prospective applicant made an affidavit confirming that they attended the authorisation meeting (which I infer to be the second meeting), that the meeting participants agreed on and adopted a decision-making process, and using this process authorised each member of the prospective applicant to replace the current applicant and to do all things necessary to give effect to that decision.
CONSIDERATION
The required authorisation process for the proposed claim group amendment and for the application under s 66B to replace Mr Akiba as the applicant are essentially the same.
In my view the notification regime to inform the claim group of the proposal to amend the claim group description and appoint a new applicant was both well-considered and comprehensive. Having regard to the content and manner of publication of the public notices as set out above, I am satisfied that all members of the claim group as currently described, and of the proposed amended claim group, were (a) alerted to the fact the meetings had been called and had sufficient time to make arrangements to attend; (b) able to judge for themselves whether they were among those entitled to attend and vote at the meetings; and (c) had fair notice of the business to be dealt with so that they could make an informed decision whether or not to attend. They were given every reasonable opportunity to participate in the decision-making process undertaken at each meeting.
The public notice clearly explained that the purpose of:
(a)the first authorisation meeting was to decide whether to amend the claim group description for Sea Claim Part B to remove persons from the island communities of Gumulgal, Saibailgal, Boigulgal or Dauanalgal, and that the effect of this would be that if native title is found to exist in the Sea Claim Part B area they would not be recognised as native title holders; and
(b)the second authorisation meeting was decide whether to replace the current applicant and determine the extent of any new applicant’s authority, and authorise steps necessary or desirable to progress the application in relation to the Sea Claim Part B area.
Claim group members were given the opportunity to raise queries through the information sessions and through Ms Kanai on the TSRA Facebook page.
I am satisfied that only the members of the appropriate claim group attended each authorisation meeting. Attendees at the information sessions all agreed that each island community is able to identify who is and who is not a member, and each attendee completed a registration form setting out their island community and/or apical ancestors. Dr Burton and Dr Murphy assisted with ensuring that the persons attending the first meeting were members of the current claim group, and the persons attending the second meeting were members of the proposed amended claim group. I infer that Dr Burton and Dr Murphy are well aware that the criterion for membership of both claim groups is descent from a named apical ancestor.
I also consider that both authorisation meetings were fairly representative of the respective claim groups (see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [42]-[46] (French J)) because:
(a)the first authorisation meeting was attended by 93 members of the claim group as currently described, and all 13 island communities were represented. In the order of 26 of the attendees were from the four island communities proposed to be excluded from the Part B claim group, and they agreed to the resolution; and
(b)the second authorisation meeting was attended by 53 members of the proposed amended claim group, and each of the nine relevant island communities were represented.
At each of the authorisation meetings the attendees decided that the persons in attendance were sufficiently representative of the claim group to be able to make authoritative decisions on the group’s behalf.
The decision-making process adopted satisfies s 251B of the Act. The attendees at both meetings agreed that there was no process of decision-making that, under the traditional laws and customs of Torres Strait Islanders, must be complied with in relation to decisions of the kind to be made at the meetings. In compliance with s 251B(b) of the Act, the claim group members in attendance agreed and adopted a decision-making process, and in accordance with that process:
(a)in the first authorisation meeting, the members of the current claim group in attendance resolved by Resolution 6 to amend the claim group description, as notified; and
(b)in the second authorisation meeting, the members of the proposed amended claim group in attendance resolved by Resolution 7 to appoint the 12 members of the prospective applicant to replace Mr Akiba as the applicant, as notified.
None of the respondents argued that the authorisation process was in any way wanting or flawed. In my view it was more than adequate.
I am satisfied that it is appropriate to make the orders the applicant seeks to amend the claim group description.
I am also satisfied is appropriate to make an order under s 66B to replace Mr Akiba with the prospective applicant. The Court has power to do so under s 66B(1)(a)(i), because Mr Akiba consents to his replacement. His replacement is plainly appropriate in circumstances where he says he does not speak for the Sea Claim Part B area, he no longer wishes to be the applicant, and the amended claim group has properly authorised the appointment of the prospective applicant.
I have made orders accordingly.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 10 May 2019
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