FEDERAL COURT OF AUSTRALIA
Booth v The State of Queensland [2003] FCA 418
NATIVE TITLE – motion to dismiss application for native title determination – requirement of authorisation by Native Title Claim Group – evidence as to authorisation of applicant to make an application for a determination of native title – whether applicant authorised – whether application should be dismissed
Native Title Act 1993 (Cth) ss 61, 84, 84C, 253
Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 cited
Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 cited
Daniel v State of Western Australia [2002] FCA 1147 cited
Simms v Minister for Land and Water Conservation [2002] FCA 15 cited
Dieri People v State of South Australia [2003] FCA 187 cited
Ridgeway on behalf of the Worimi People, in the Matter of Russell v Bissett Ridgeway [2001] FCA 848 cited
Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 citedGEOFFREY BOOTH (“BUNTHAMARRA PEOPLE #2") v
THE STATE OF QUEENSLAND
Q6014 OF 2002TAMBERLIN J
SYDNEY
9 MAY 2003
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q6014 OF 2002
BETWEEN:
GEOFFREY BOOTH (“Bunthamarra People #2")
APPLICANTAND:
THE STATE OF QUEENSLAND
RESPONDENTJUDGE:
TAMBERLIN J
DATE OF ORDER:
9 MAY 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q6014 OF 2002
BETWEEN:
GEOFFREY BOOTH (“Bunthamarra People #2")
APPLICANTAND:
THE STATE OF QUEENSLAND
RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
9 MAY 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
A Notice of Motion was filed on 29 November 2002 by Queensland South Representative Body Aboriginal Corporation (“Queensland South”) seeking orders that it be joined as a party to these proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) (“the Act”). A second and consequential order is sought by Queensland South that the proceedings be struck out pursuant to s 84C of the Act or otherwise dismissed pursuant to O 20 r 2(1) of the Federal Court Rules.
I am satisfied that service of the Motion has been properly effected and I note that there has been no appearance for the applicant.
Evidence has been filed by Mr Carter, the solicitor for Queensland South, which satisfies me that it has sufficient standing to make an application to be joined as a party to the proceedings and seek the orders in the Motion: see Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365.
Section 84C of the Act empowers the Court to strike out an application which fails to comply with requirements of the Act. Under s 61(1) of the Act a person or persons authorised by all persons (the Native…
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- Case
- [2003] FCA 418
- Decision Date
CaseChat Overview and Summary
The legal issues at hand revolved around the necessity for all members of the Native Title Claim Group to authorise Booth's claim, the specifics of the decision-making process, and whether there was sufficient evidence to support the claim that such authorisation was properly obtained. The court examined whether the group had a traditional decision-making process, if a majority vote was valid, and if the authorisation process was recognised and followed correctly.
In evaluating the matter, the court found that Booth's application lacked crucial evidence regarding the meetings and telephone calls that were allegedly held to authorise his claim. There was no evidence of the members' identities, the nature of the decisions made, or the process followed to authorise Booth. The court also noted that there was no evidence of the group's agreement to any specific decision-making process. Furthermore, the concept of a majority vote was not substantiated by any oral or written evidence. As a result, the court concluded that Booth had not demonstrated proper authorisation from all members of the Native Title Claim Group.
The application was dismissed, with the court ruling that Booth's contentions were not substantiated by adequate evidence and that the authorisation process was not properly followed.
Orders
Orders of the court
The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: TAMBERLIN J
The contention of Queensland South is that the bases which the applicant relies on are inconsistent and demonstrate that the applicant did not have any proper authorisation. Queensland South points to the lack of any evidence as to the nature of any of the meetings or telephone calls or any specification as to who convened the meetings or made the calls. It also points to the lack of evidence of notification of members of the Native Title Claim Group regarding the holdings of the meetings and as to whether those at the meetings or who had received the telephone calls were members of the Native Title Claim Group. There is also reference to the lack of evidence as to whether the authorisation of Geoffrey Booth was specifically considered and also to the absence of detail as to the nature of decisions made at any of the meetings or during the telephone calls. Nor, according to Queensland South, is there any evidence as to the process of decision-making by which the applicant claims to be authorised. Furthermore, it is submitted that there is no evidence of any decisions as to authorisation at the meetings relied on as being still current when the application was lodged on 8 April 2002. I am satisfied that the contention of Queensland South has been made out in relation to these matters.CONSIDERATION OF THE APPLICATION The applicant must be authorised by all members of the Native Title Claim Group. In the present application the persons who compromise the Native Title Claim Group are not identified either by name or by reference or by any sufficient description. There is also a lack of evidence that the Native Title Claim Group, which is alleged to have authorised Mr Booth, had any applicable traditional decision-making process or that any particular process was followed. There is no evidence that the Native Title Claim Group agreed to and adopted some other decision-making process in relation to authorising the applicant to make the application. Nor is there any evidence that the process has been recognised or that any process has been followed. In so far as any reliance is placed on a majority “vote” there is no evidence, oral or written, as to the constitution of the group or the basis on which it is claimed that a majority vote would be sufficient. Moreover, this begs the questions in relation to the majority vote as to who and how many persons are entitled to vote and precisely what is meant by the expression “majority vote”. The question of the requirements for authorisation of a Native Title application has been considered in detail in a numbers of recent cases: see Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25] ff; Daniel v State of Western Australia [2002] FCA 1147 at [11] –[18]; Simms v Minister for Land and Water Conservation [2002] FCA 15; Dieri People v State of South Australia [2003] FCA 187 at [54]-[58]; Ridgeway on behalf of the Worimi People, in the Matter of Russell v Bissett Ridgeway [2001] FCA 848; and Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [32] ff.