Gomeroi People v Attorney General of New South Wales
[2017] FCA 1464
•7 December 2017
FEDERAL COURT OF AUSTRALIA
Gomeroi People v Attorney General of New South Wales [2017] FCA 1464
File number: NSD 2308 of 2011 Judge: RANGIAH J Date of judgment: 7 December 2017 Catchwords: NATIVE TITLE – application under s 66B of the Native Title Act 1993 (Cth) to replace current applicant to a native title determination – whether authorisation meeting was validly convened and conducted under s 251B – whether proper notice of authorisation meeting was given – whether conduct of authorisation meeting was irregular and/or unfair – discretion under s 66B(2) to replace applicant Legislation: Evidence Act1995 (Cth) s 140
Native Title Act 1993 (Cth) ss 31, 61, 62A, 66B, 203, 251B
Cases cited: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Briginshaw v Briginshaw (1938) 60 CLR 336
Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373
Butchulla People v Queensland (2006) 154 FCR 233
Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703
Coyne v State of Western Australia [2009] FCA 533
Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147
Dingaal Tribe v State of Queensland [2003] FCA 999
Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406
Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180
Frank on behalf of the Mayala People v State of Western Australia (No 3) [2016] FCA 1255
G v H (1994) 181 CLR 387
Girlock (Sales) Proprietary Limited v Hurrell (1982) 149 CLR 155
Gomeroi People v Attorney-General (NSW) (2016) 241 FCR 301
Jones v Dunkel (1959) 101 CLR 298
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
Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467
The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278
Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87
TJ v Western Australia (2015) 242 FCR 283
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255
Date of hearing: 16-18 May 2017 and 15 June 2017 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 256 Counsel for the Prospective Applicant: Mr V Hughston SC with Mr C Gregory Solicitor for the Prospective Applicant: NTSCORP Limited Counsel for the Current Applicant: Mr D O’Gorman SC with Mr D Billington Solicitor for the Current Applicant: Sam Hegney Solicitors Counsel for the First Respondent: Mr J Waters Solicitor for the First Respondent: Crown Solicitor’s Office (NSW) Table of Corrections 6 June 2018 In the fourth sentence of paragraph 6, the words “or areas” has been inserted after “towns”. 6 June 2018 In the fourth sentence of paragraph 207, the word “statement” has been changed to “statements”. 6 June 2018 In the fourth sentence of paragraph 248, the word “lightly” has been removed after “exercised”. 6 June 2018 In the first sentence of paragraph 250, a comma has been inserted after the word “opinion”. 9 November 2018 In the second sentence of paragraph 3, the word “the” has been inserted after the word “by”. 9 November 2018 In the first sentence of paragraph 6, the word “that” has been replaced with “at” after the year “2013”. 9 November 2018 In the third sentence of paragraph 46, the words “Applicants rely” have been replaced with “Applicant relies”. 9 November 2018 In the second sentence in paragraph 69, the word “to” has been removed after the word “and”. 9 November 2018 The name “Priestley” has been replaced with the name “Priestly” wherever mentioned throughout the reasons. 9 November 2018 In the first sentence of paragraph 98, the word “be” has been inserted after the word “must”. 9 November 2018 In the first sentence of paragraph 101, the word “lawyer” after the word “new” has been replaced with “lawyers”. 9 November 2018 In the third sentence of paragraph 114, the word “not” has been inserted after the word “am”. 9 November 2018 In the third sentence of paragraph 123, the duplication of the word “that” has been removed after the word “namely”. 9 November 2018 In the fourth sentence of paragraph 143, the word “they” has been inserted after the word “says”. 9 November 2018 In the third sentence of paragraph 147, the word “to” has been removed after the word “reading”. 9 November 2018 In the first sentence of paragraph 148, the word “in” has been inserted after the word “not” and in the second sentence the word “raise” has been replaced with “raised”. 9 November 2018 In the last sentence of paragraph 149, the word “in” has been inserted after the word “meeting”. 9 November 2018 In the first sentence of paragraph 153, the word “of” has been replaced with “at”. 9 November 2018 In the last sentence of paragraph 154, the words “time and atmosphere” have been replaced with “times and the atmosphere”. 9 November 2018 In the fourth sentence of paragraph 157, “Michael Williams” has been replaced with “Marcus Waters”. 9 November 2018 In the first sentence of paragraph 158, “Williams” has been replaced with “Waters”. 9 November 2018 In the fourth sentence of paragraph 164, the word “of” has been inserted after the word “some”. 9 November 2018 In the eighth sentence in paragraph 184, the word “off” has been replaced with “of”. 9 November 2018 In the fifth sentence of paragraph 185, the word “it” has been removed after the word “fastened”. 9 November 2018 In the last sentence of paragraph 196, the word “he” has been inserted after the word “although”. 9 November 2018 In the fourth sentence of paragraph 197, the word “was” has been replaced with “were” after the word “there”. 9 November 2018 In the third and fourth sentences of paragraph 198, the word “is” has been removed after the words “whose” and “inference” respectively and in the tenth sentence, the word “it” has been inserted after the word “that”. 9 November 2018 In paragraph 200(a), the word “at” has been inserted after the word “vote” and in 200(d), the word “representatively” has been replaced with “representativity”. 9 November 2018 In the second sentence of paragraph 210, the word “this” has been inserted after the word “why” and in the last sentence, the word “in” has been inserted after the word “impropriety”. 9 November 2018 In the first sentence in paragraph 220, the word “the” has been removed after the word “after”. 9 November 2018 In the second sentence of paragraph 230, the name “Gary” has been replaced with “Darren”. 5 November 2018 In the second sentence of paragraph 240, the word “and” has been removed and replaced with a comma after the surname “Munro”. 5 November 2018 In the fifth sentence of paragraph 242, the word “the” has been inserted after the word “of”. 5 November 2018 In the first sentence of paragraph 252, the words “soon as” have been inserted after the word “as. ORDERS
NSD 2308 of 2011 BETWEEN: GOMEROI PEOPLE
Applicant
AND: ATTORNEY GENERAL OF NEW SOUTH WALES AND OTHERS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
NEW SOUTH WALES ABORIGINAL LAND COUNCIL (and others named in the Schedule)
Third Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
7 DECEMBER 2017
THE COURT ORDERS THAT:
1.Jason Wilson, Leslie Duncan, Marcus Waters, Malcolm Talbot, Barry French, Garry Binge, Raymond Weatherall, Steven Talbott, Donald Craigie, Dennis Griffen, Jennifer Bennett, Sheryl Barnes, Roslyn Nean, Sharon Porter, Emily Roberts, Fay Twidale, Tania Matthews, Natasha Talbott and Maria Cutmore jointly replace the current applicant for the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
Background
[4]
The legislation
[30]
The issues
[35]
Consideration
[40]
Adequacy of the notice of meeting
[56]
Whether notice was only directed to claim group members with similar concerns
[58]
Whether the Meeting Notice was misleading
[66]
Whether the Meeting Notice was misleading by stating the Current Applicant acted without authority of claim group
[69]
Whether the Meeting Notice was misleading as to when registration would take place
[76]
Whether Meeting Notice was misleading by stating that a large number of requests to call the meeting had been received
[85]
Whether the Meeting Notice was misleading by failing to disclose NTSCORP’s motives for calling the meeting
[95]
Whether the Meeting Notice was misleading by failing to identify that the Replacement Applicant would not consist of representatives of the 19 regions
[108]
Whether the 2016 Authorisation Meeting was adequately advertised
[115]
Whether the composition of the persons attending the 2016 Authorisation Meeting was appropriately representative of the Gomeroi Claim Group
[126]
Whether the conduct of the 2016 Authorisation Meeting was irregular and/or unfair
[141]
Whether meeting degenerated into chaos and whether Mr Bergmann was not independent
[142]
Alleged defects in the system of registration and record keeping
[169]
Whether there was an error in allowing people to register outside the times stated in the Meeting Notice
[171]
Whether people were able to remove green wristbands or vote without green wristbands
[196]
Other alleged defects in the conduct of the 2016 Authorisation Meeting
[200]
Whether Resolution #1 was ambiguous
[201]
Whether Resolution #8 was valid
[209]
Failure to put a motion concerning representativity to a vote
[210]
Whether there was a lack of transparency in counting votes
[211]
Whether Mr Bergmann was working in support of NTSCORP’s interests
[212]
Whether Mr Bergmann acted in support of NTSCORP by facilitating the moving of motions by Mr Waters
[216]
Whether there was unfairness in NTSCORP’s legal advisor addressing the meeting
[218]
Departures from the agenda
[222]
Whether the meeting should have been postponed because of the death of a claim group member
[224]
Defects in nomination of, voting for and authorisation of the Replacement Applicant
[227]
Consideration of cumulative effect of defects
[245]
Exercise of the discretion
[247]
Conclusion
[255]
REASONS FOR JUDGMENT
RANGIAH J:
The principal proceeding is an application for a determination of native title brought by the 19 persons comprising the applicant (the Current Applicant) on behalf of the Gomeroi People.
The application presently before the Court is an interlocutory application pursuant to s 66B of the Native Title Act 1993 (Cth) (the Act) for an order that 19 persons (the Replacement Applicant) replace the Current Applicant.
The application relies upon resolutions carried at a meeting of the native title claim group in Tamworth on 19 and 20 July 2016 (the 2016 Authorisation Meeting). The application is opposed by the Current Applicant who allege that those resolutions do not reflect decisions by the whole of the claim group to remove the Current Applicant and authorise the Replacement Applicant.
Background
The Gomeroi People seek a declaration of native title in respect of an area of New South Wales bounded by the Queensland border in the north, the western slopes of the New England Tableland in the east, the Hunter and Goulbourn Rivers in the south and the Castlereagh River in the west. The native title claim group is defined in the application as the descendants of 114 named apical ancestors.
The native title determination application was originally authorised at a claim group meeting held on 24 and 25 June 2011. The meeting was attended by at least 200 Gomeroi people.
The Current Applicant was authorised by the claim group at a meeting held on 10 and 11 May 2013 at Tamworth (the 2013 Authorisation Meeting). Approximately 400 Gomeroi people attended the 2013 Authorisation meeting. The claim group passed a resolution at that meeting that it wished to have 19 individuals as the applicant, each drawn from one of the 19 regions which were said to comprise the traditional Gomeroi country. Those 19 regions were identified by reference to towns or areas within the claim area, namely Ashford, Boggabilla, Caroona/Walhallow/Breeza, Collarenebri, Coonabarabran, Coonamble, Gulargambone, Gunnedah, Inverell, Moree, Mungindi, Narrabri, Quirindi/Werris Creek, South West Queensland, Terry Hie Hie, Tamworth, Tingha, Toomelah and Walgett.
The other resolutions carried at the 2013 Authorisation Meeting included the following:
Resolution #5 - Retention of NTSCORP Services and Legal Representation
The Gomeroi People native title claim group resolved to continue to retain the services of NTSCORP Limited and the legal practice funded by NTSCORP Limited in relation to the Gomeroi People’s native title determination application and related future acts processes on the basis that they act at all times in accordance with the instructions of the Gomeroi native title claim group and Applicants.
Resolution #10 - Authority and Role of the Applicant
The Gomeroi People native title claim group acknowledge the authority and responsibilities of the Applicant as set out in the Native Title Act 1993 (Cth).
The Gomeroi People native title claim group confers authority on the people who make up the Applicant in the expectation that they will act at all times in the interests of the Gomeroi People native title claim group and will not act in any way which is for personal benefit or in the pursuit of a personal interest. These expectations include:
…
(e)The Applicant may not attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi People native title claim group in relation to their native title determination application (NSD2308/2011) and any future acts arising in relation to it, or engage another solicitor for those purposes, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising them to do so;
(f)The Applicant must not execute any agreement conferring benefits or obligation on Gomeroi People, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;
…
Any person comprising the Applicant may be replaced for acting contrary to these expectations and therefore exceeding the authority conferred on them by the Gomeroi People native title claim group.
The Current Applicant did not adhere to the “expectations” of the claim group expressed in Resolution #10 in two respects. First, the Current Applicant appointed Sam Hegney Solicitors to prosecute the native title claim and associated legal matters in place of Robert Powrie, a solicitor funded by NTSCORP. Second, the Current Applicant, by majority, agreed to the grant of a mining lease in favour of three mining companies. The authority of the claim group for these actions was not obtained.
Mr Hegney wrote to NTSCORP requiring that the file concerning the Gomeroi People claim be transmitted to his firm. NTSCORP responded saying that it did not accept that Mr Hegney’s firm was validly retained as solicitors on the record and declining to deliver the files. On 10 February 2015, Mr Hegney filed a notice of change of lawyer form in the Court.
Mr Powrie then filed an application seeking orders that the notice of change of lawyer form be uplifted from the Court file and that Mr Powrie be reinstated as solicitor on the record. On 10 March 2015, Jagot J dismissed that application, but granted leave to NTSCORP to file and serve upon Mr Hegney proposed directions concerning a meeting of the Gomeroi People. On 13 May 2015, Jagot J made orders, including an order that NTSCORP facilitate a claim group meeting to consider Resolution #10(e) of the resolutions carried at the 2013 Authorisation Meeting. The Current Applicant appealed against those orders and, on 30 May 2016, they were set aside by the Full Court: see Gomeroi People v Attorney-General (NSW) (2016) 241 FCR 301. The majority concluded that the jurisdiction of the Court to make the orders had not been enlivened in circumstances where there was no evidence of any current dispute within the Gomeroi claim group about the authorisation of the Current Applicant.
On 8 June 2016, NTSCORP decided to convene the 2016 Authorisation Meeting. The meeting was to be held to, inter alia, enable the Gomeroi claim group to consider whether to replace the Current Applicant. Alexander Chalmers, a solicitor employed by NTSCORP, deposes that the decision was “based on requests received by NTSCORP from various Gomeroi claim group members”.
The requests that Mr Chalmers referred to included a petition addressed to NTSCORP, which stated, relevantly:
Petition to NTSCORP Ltd, Chair of Board Michael Bell and CEO Natalie Rotumah
RE; Removal of Representatives from the Gomeroi, Gamilaroi, Kamilaroi Nation Claim Group Authorisation Body
We the undersigned, as representatives of the Gomeroi, Gamilaroi, Kamilaroi Nation, demand that NTS CORP Ltd, under the “Assistance and Facilitation Funding to consider and make decisions to”;
1. Legal Representation, and
2. Replace the Named Applicants
Under Section 66B of the National Native Title Act, hereby ask for a gathering of the Gomeroi, Gamilaroi, Kamilaroi Nation to replace the named representatives currently appointed to the Gomeroi, Gamilaroi, Kamilaroi Nation Claim Group Authorisation Body.
…As people of the Gomeroi, Gamilaroi, Kamilaroi Nation, we feel that we are not being represented by the current Claim Group Authorisation representatives to our best interests. The Claim Group does not provide any feedback to the Nations peoples and are currently making decisions without seeking ratification from the Nations peoples on various issues that are now Impacting on people and communities across our Nation.
…
We demand that NTSCORP ltd act immediately and take the necessary actions to host a Gomeroi, Gamilaroi, Kamilaroi Nation Gathering at its earliest possible convenience and to address the core recommendations outlined below in this Petition. These recommendations are that:
…
2.Replace the currently Named Applicants on the Gomeroi, Gamilaroi, Kamilaroi Nation Claim Group Authorisation Body
3. That the people of the Gomeroi, Gamilaroi, Kamilaroi Nation Immediately reinstate NTSCORP Ltd as the Legal Representative of the Gomeroi, Gamilaroi, Kamilaroi Nation people,
…
The petition contained the signatures of approximately 139 people. The provenance and authenticity of the petition was a matter of substantial controversy at the hearing.
NTSCORP produced a notice advertising the 2016 Authorisation Meeting (the Meeting Notice). The Meeting Notice stated, relevantly:
NOTICE OF AN AUTHORISATION
MEETING OF THE GOMEROI PEOPLE NATIVE TITLE
CLAIM GROUP (NSD 2308/2011)
When:
Tuesday, 19 July 2016
8:00am – 12.00pm – Meeting Registration
1:00pm – 5:00pm – MeetingWednesday, 20 July 2016
9:00am – 3:00pm – Meeting continuedWhere:
Tamworth Regional Entertainment Conference Centre
Greg Norman Drive, Tamworth, NSW 2340
Who should attend:
The meeting is open to all members of the native title claim group in the Gomeroi People native title determination application (NSD 2308/2011) (‘Gomeroi Claim Group’, ‘the Claim Group’ and ‘Gomeroi Claim’ respectively), being the descendants of any of the following persons:
[140 named ancestors]
In January 2015 the Current Applicant decided to remove NTSCORP as the lawyer representing the Gomeroi People, and appoint Mr Sam Hegney in its place. This was done without the authority of the Gomeroi Claim Group.
On 7 September 2015 the National Native Title Tribunal (‘NNTT’) handed down its decision in Ashton Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTT A 40. The decision indicates that 16 of the 18 living named Applicants signed a Section 31 mining agreement with Ashton Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd. NTSCORP understands that this agreement was executed without authorisation by way of any resolution of the Gomeroi Claim Group.
NTSCORP has since received a large number of requests from members of the Gomeroi Claim Group to call a meeting to enable the Gomeroi Claim Group to discuss and make a decision on who should be the group’s legal representative, and on whether or not the Current Applicant should continue to be authorised or be replaced.
Based on these requests, NTSCORP is assisting in the notification and organisation of this meeting. This is in accordance with NTSCORP’s statutory facilitation and assistance and dispute resolution functions under s 203BB and s 203BF of the Native Title Act 1993 (Cth).
An independent facilitator will be present to conduct the meeting and an independent legal advisor will be present to provide members of the Gomeroi Claim Group with legal advice regarding any issues arising during the course of the meeting.
The agenda for the meeting is:
1. Update on developments in relation to the Gomeroi Claim.
2. Confirmation of the relevant decision-making process for the members of the Gomeroi Claim Group.
3. Discussion and making a decision on who the Gomeroi Claim Group wishes to retain as its legal representative in relation to the Gomeroi Claim and any related future act processes.
4. Discussion and making decisions on whether the Gomeroi Claim Group wishes to continue to authorise the Current Applicant, or to replace the Current Applicant. If the claim group wishes to replace the Current Applicant, the meeting will consider resolutions to authorise a new Applicant on the basis that the Current Applicant is no longer authorised, has exceeded the authority given to it, and/or on the basis that one of the persons jointly comprising the Applicant has passed away. If the claim group authorises a new Applicant, it will be asked to authorise the new Applicant to make an application to the Federal Court for an order under section 66B of the Native Title Act 1993 (Cth) that the new Applicant replace the Current Applicant.
5. The Gomeroi Claim Group will be asked to consider whether to place conditions on the powers of the Applicant (whether the Current Applicant or a new Applicant) such as in relation to its implementation of the resolutions and decisions of the Gomeroi Claim Group, its ability to change the Gomeroi Claim Group’s legal representative or its ability to enter into commercial and other agreements which may affect the Gomeroi People’s native title rights and interests.
6. Any other matters, as determined by members of the Gomeroi Claim Group.
If you wish to attend the Gomeroi Claim Group meeting, please contact NTSCORP on the numbers listed below by close of business on Wednesday 13 July 2016, so that all relevant arrangements can be made.
NTSCORP mailed the Meeting Notice and a registration form for the meeting to the 862 members of the Gomeroi claim group for whom NTSCORP had postal addresses. A list of those names and addresses (the Claim Group List) had been compiled by NTSCORP and its predecessor from information provided at previous claim group meetings and on other occasions.
The Meeting Notice was published in the Koori Mail newspaper on 29 June 2016. NTSCORP places all its authorisation meeting notices in the Koori Mail. Mr Chalmers deposes that the Koori Mail is well-known to have a good circulation amongst Aboriginal people in New South Wales. The Koori Mail website also has a section where native title related notices can be accessed electronically.
NTSCORP published four statements advertising the 2016 Authorisation Meeting on the “Gomeroi Dreaming” Facebook page.
NTSCORP caused an advertisement for the 2016 Authorisation Meeting to be published in the Moree Champion newspaper on 14 July 2016. There was also an article written in that edition of the newspaper about the meeting. The Moree Champion also published the article online on 16 July 2016 and provided NTSCORP’s contact details in the article. The Moree Champion newspaper has an estimated readership of 4,576 people and its website has approximately 36,240 “impressions” per month. The distribution area encompasses a number of small towns in the Moree area.
On 17 June 2016, NTSCORP wrote to Mr Hegney notifying him of the 2016 Authorisation Meeting and providing details of the proposed date and matters that would be considered by the Gomeroi claim group at the meeting. On 24 June 2016, NTSCORP emailed a copy of the Meeting Notice to Mr Hegney.
On 1 July 2016, NTSCORP engaged Sarah Pritchard SC to act as an independent legal advisor at the 2016 Authorisation Meeting. It also engaged Wayne Bergmann to act as facilitator of the meeting.
NTSCORP offered financial assistance to Gomeroi claim members who wanted to travel to attend the 2016 Authorisation Meeting. It paid for a total of 203 hotel and motel rooms in Tamworth, accommodating 366 adults and 83 children. It made mileage payments for 128 people who travelled in excess of 50 kms to Tamworth. It also provided meals during the meeting and paid for breakfast and evening meals for those who travelled to Tamworth.
On the morning of the first day of the 2016 Authorisation Meeting there was a process of identification and registration of members and non-members of the Gomeroi claim group. Those people identified as members of the claim group were issued with green wrist bands. When voting took place at the meeting, NTSCORP staff counted the votes of those people with green wrist bands. The processes of identification, registration and voting will be described in more detail later in these reasons.
NTSCORP’s attendance records show that a total of at least 363 Gomeroi Claim Group members and 28 observers attended the 2016 Authorisation Meeting over the two days. There were 322 attendees who signed attendance sheets on 19 July 2016, while 273 attendees signed the attendance sheets on 20 July 2016.
The motions considered by the claim group, and their outcomes, were relevantly, as follows:
Day 1, Tuesday 19 July 2016
# 1. Gomeroi People Native Title Claim Group Decision-Making Method
When making important decisions about matters arising under the Native Title Act (including authorising a native title application and dealing with matters arising in relation to it), there is no particular process of decision-making under traditional laws and customs that MUST BE complied with by the Gomeroi People native title claim group.
The Gomeroi People native title claim group have agreed to and adopted the following process of decision-making for the purposes of the native title claim:
1.the decision to be made will be put in the form of a clearly worded written motion;
2.the motion will be read out to the meeting;
3.the motion must be moved and seconded by members of the group before it is decided on;
4.the decision will then be made by the group by a show of hands;
5.a decision of the majority in relation to the motion shall be a decision of the meeting.
In favour: 200
Against: 13
Abstentions: 2
Resolution carried by majority
#2. Participation by Mr Sam Hegney in the meeting
The Gomeroi People native title claim group resolve that the Applicant’s solicitor on the record Mr Sam Hegney not be permitted to attend or speak at the meeting.
In favour: 71
Against: 131
Abstentions: 3
Motion not carried
Day 2, Wednesday 20 July 2016
#3. Involvement of NTSCORP in the Gomeroi native title determination application NSD2308/2011
This meeting withdraws their prior request consent for NTSCORP to be the statutory body providing their facilitation, assistance and support services and confirms the removal of NTSCORP as legal representative for the claim group.
In favour: 71
Against: 157
Abstentions: 7
Motion not carried
…
#5. Legal Representation of the Gomeroi People
The Gomeroi People native title claim group resolve to remove Mr Sam Hegney and to engage NTSCORP Limited, as their legal representative in relation to the Gomeroi People native title determination application NSD2308/2011 and any related future act matters.
In favour: 138
Against: 5
Abstentions: 8
Resolution carried by majority
#6. Authorisation of Applicant: removal of 19 persons named as the Applicant for the Gomeroi People in native title determination application NSD2308/2011
The Gomeroi People native title claim group resolve to remove the following 19 people jointly comprising the Applicant and confirm that they are no longer authorised by the Gomeroi People native title claim group:
1. Maureen Sulter 2. Susan Smith 3. Michael Anderson 4. Raymond Welsh (Snr) 5. Richard Green 6. Greg Griffiths 7. Elaine Binge 8. Alfred Priestly 9. Leslie ‘Jacko’Woodbridge 10. Ray Tighe 11. Alfred Boney 12. Anthony Munro 13. Madeline McGrady 14. Bob Weatherall 15. Jason Wilson 16. Lyall Munro Jnr 17. Clifford Toomey 18. Burrul Galigabali (dec) 19. Norman McGrady (dec) In favour: 130
Against: 6
Abstentions: 10
Resolution carried by majority
Notes:
The named applicants in attendance at the meeting requested for it to be recorded that they do not consent to their removal.
Jason Wilson requested for it to be recorded that he supported the motion.
…
#8. Election and Authorisation or Applicant: 19 people
The Gomeroi People native title claim group resolve to elect 19 people as their Applicant in native title determination application NSD2308/2011, and to authorise them as the Applicant to make an application under s 668(1) in native title determination application NSD2308/2011 and to deal with matters arising in the course of the claim (s 62A).
In favour: 147
Against: 2
Abstentions: 1
Resolution carried by majority
#9. Election and Authorisation of Applicant: elected and authorised 19 people
The Gomeroi People native title claim group resolve that the 19 people to be elected and authorised as their Applicant in native title determination application NSD2308/2011 come from the floor of the meeting and represent the Gomeroi people, and not the regions.
In favour: 89
Against: 22
Abstentions: 3
Resolution carried by majority
#10. Election and Authorisation of Applicant: elected and authorised 19 people: 9 men, 9 women
The Gomeroi People native title claim group resolve that the first 9 women and first 9 men with the highest votes will be elected, and that the 19th person to be elected will be the next person with the highest vote.
Moved: Veronica Talbott
Seconded: Mitchum Neave
In favour: 161
Against: 0
Abstentions: 1
Resolution carried
#11. Election and authorisation
The Gomeroi People native title claim group confirm that the 19 people they have elected and authorised as their Applicant in native title determination application NSD2308/2011 are:
Name 1. Jason Wilson 2. Leslie (Phillip) Duncan 3. Marcus Waters 4. Malcolm Talbott 5. Barry French 6. Gary Binge 7. Ray Weatherall 8. Stephen Talbott 9. Don Craigie 10. Dennis Griffen 11. Jenny Ellis 12. Sheryl Barnes 13. Rose Nean 14. Sharon Porter 15. Emily Roberts 16. Fay Twidale 17. Tania Matthews 18. Natasha Talbott 19. Maria Cutmore The persons authorised as the Applicant acknowledge the conditions upon which they are authorised, set out in resolution #13, and agree to act in accordance with them.
For: 79
Against: 28
Abstentions: 3
Resolution carried by majority
The most significant of the resolutions carried by the claim group are those described as Resolutions # 6 and # 11.
The meeting was video recorded and a copy of the recording is in evidence before the Court. An agreed transcript of what was said at the meeting has also been placed before the Court.
The meeting was facilitated and chaired by Mr Bergmann. Mr Bergmann and Dr Pritchard later prepared a report concerning the meeting. The report indicates that the resolutions moved and seconded by members of the claim group were drafted by Dr Pritchard in consultation with Mr Bergmann. Those resolutions were read to the meeting and were also projected and displayed on two large video screens at the front of the auditorium.
The report states that the procedure for the counting of votes was as follows. First, the votes of those in favour of the motion were counted. Second, the votes of those against the motion were counted. Finally, the votes of those abstaining from the motion were counted. The counting was carried out by four members of NTSCORP’s staff. The report indicates that only the votes of persons with raised hands wearing green wristbands were counted.
The first resolution put to and carried by the meeting concerned the voting procedures to be adopted. Shortly afterwards, Mr Bergmann made an announcement to the effect that, should people leave the meeting, the votes of the people present would be counted for each resolution and a resolution with the majority of votes of those present in favour of it would be carried. The meeting proceeded on this basis. People entered and left the meeting from time to time.
The legislation
Section 61(1) of the Act provides that an application for a determination of native title can be made by, relevantly:
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 claim group.
Section 61(2) of the Act provides, relevantly, that in the case of the native title determination application made by a person or persons authorised to make the application by a native title claim group, the person is, or the persons are jointly, the applicant.
Section 66B of the Act provides, relevantly:
66B 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.
Note:Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.
Court order
(2)The Court may make the order if it is satisfied that the grounds are established.
…
Section 66B(1)(b) of the Act requires that the proposed replacement applicant must have the authorisation of the claim group to make (or continue) the native title determination, rather than authorisation to make the s 66B application: see Gomeroi People v Attorney-General (NSW) at [86].
Section 251B provides:
251B 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 issues
The conditions that must be satisfied in order for an applicant to succeed in an application under s 66B of the Act were described by French J (as his Honour was then) in Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147 at [17]:
1. There is a claimant application.
2. Each applicant for an order under s 66B is a member of the native title group.
3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.
4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.
5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it.
It is not in dispute that the first and second conditions are satisfied. The Replacement Applicant does not rely directly upon the fourth condition. The dispute is as to whether the third and fifth conditions are satisfied. Further, there is an issue as to whether, if the five conditions are satisfied, the Court should to refuse to make the order in the exercise of its discretion under s 66B(2) of the Act.
The Replacement Applicant submits that at the 2016 Authorisation Meeting the claim group clearly decided to replace the Current Applicant with the Replacement Applicant. They submit that this is demonstrated by the carriage of Resolutions #6 and #11.
The Current Applicant submits, in summary, that the interlocutory application should be dismissed because:
1.The notice of the 2016 Authorisation Meeting drafted by NTSCORP was inadequate.
2. The 2016 Authorisation Meeting was not adequately advertised.
3.The composition of the persons attending the 2016 Authorisation Meeting was not appropriately representative of the Gomeroi Claim Group.
4. The conduct of the 2016 Authorisation Meeting was irregular and/or unfair.
5.The Replacement Applicant was not validly elected and authorised by those in attendance at the 2016 Authorisation Meeting.
6.The Replacement Applicant is not representative of the Gomeroi Claim Group.
7.The 2016 Authorisation Meeting was not convened by NTSCORP for a purpose permitted under the Act.
8.The Court’s discretion should be exercised against making an order for the replacement of the Current Applicant.
I propose to consider the significance of authorisation, and the nature of the process by which authorisation of the claim group can be obtained, before dealing with each of these issues.
Consideration
Under s 61(1) of the Act, an application for a determination of native title may only be brought on behalf of a native title claim group by a person or persons authorised to do so by the claim group. In Daniel v Western Australia, French J said at [11]:
It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so.
The power of a native title claim group to withdraw the authorisation of an applicant is equally important. Section 66B of the Act provides a mechanism – the only mechanism – by which a claim group can replace one applicant with another. The provision is protective of the claim group, as well as facultative. The persons applying under that provision must demonstrate not only the existence of one of the grounds set out in s 66B(1)(a), but also that they are authorised by the claim group to make the application and to deal with the matters arising in relation to it. This ensures that it is the claim group which decides (subject to the Court’s discretion to refuse to make an order replacing the applicant) who are the persons representing the group.
Section 251B of the Act describes the process by which the claim group can authorise members of the group to make a native title determination application and deal with matters arising in relation to it. Although it does not do so expressly, s 251B also defines the decision-making process by which authorisation may be withdrawn: Daniel at [14].
Section 251B of the Act sets out two processes by which the claim group can authorise the applicant or withdraw authorisation. The first, in paragraph (a), applies only where the claim group has a mandatory traditional process of decision-making in relation to authorisation. The second, in paragraph (b) allows the claim group to authorise the applicant, or withdraw authorisation, in accordance with a process of decision-making agreed to and adopted by the persons in the claim group. The second process was used in this case.
The process described in section 251B(b) of the Act does not require the agreement of every person in the claim group. In 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, Stone J said at [25]:
In s 251B(b) there is no mention of “all” and, in my opinion the subsection does not require that “all” the members of the relevant claim Group must be involved in making the decision. Still less does it require that the vote be a unanimous vote of every member. Adopting that approach would enable an individual member or members to veto any decision and may make it extremely difficult if not impossible for a claimant group to progress a claim. In my opinion the Act does not require such a technical and pedantic approach. It 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.
The Replacement Applicant must satisfy the Court on the balance of probabilities that the requirements of s 66B are met: see Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [65], [132]. The central importance of authorisation is a matter that the Court should take into account pursuant to s 140(2) of the Evidence Act1995 (Cth). The state of satisfaction that is required should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.
On the other hand, it should not be accepted that any deficiency in the notification or conduct of an authorisation meeting must necessarily require the refusal of an order under s 66B of the Act. The Current Applicant asserts that there were misrepresentations in the Meeting Notice and procedural defects in the conduct of the meeting and voting at the meeting. The Current Applicant relies upon cases referring to the necessity for a “valid” or “properly conducted” meeting of the claim group. In my respectful opinion, prescriptive expressions such as these are unhelpful in a context where, as Reeves J pointed out in Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 at [21] at [29], the Act does not require an authorisation meeting to be held. As a matter of practicality, questions of authorisation are usually dealt with by holding a meeting of the claim group (commonly referred to as an “authorisation meeting”), but the Act confers no particular status on such a meeting, nor does the Act prescribe rules for its conduct, nor conditions for its validity.
The questions that must be answered under s 66B of the Act are whether the Current Applicant is no longer authorised, and whether the proposed replacement applicant is authorised, by the claim group to make the application and deal with matters arising in relation to it. The outcome of an authorisation meeting provides evidence about those matters, but the weight given to that evidence may be affected by defects in the way the claim group is notified of the meeting, or the way the meeting is conducted. Such defects may produce the consequence that the Court is not satisfied that the claim group has made the necessary authorisation decisions. However, defects, whether substantive or procedural, do not necessarily require refusal of an order for replacement of the applicant: see, for example, Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 at [14], Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406 at [71]. The precise questions that must be answered must be firmly kept in mind. Accordingly, it is necessary for the Court to consider the nature and seriousness of any defects and their significance to the questions of whether the applicant is no longer authorised, and the proposed replacement applicant is authorised, by the claim group.
In some important respects, the notification and conduct of a claim group meeting is more problematic than other types of meetings commonly encountered by the courts, such as a general meeting of a company, or a club, or association. The problems include the following.
Firstly, identification of all the members of the claim group, and therefore identification of the persons entitled to vote at an authorisation meeting, can be difficult. The members of a claim group are usually defined by reference to biological descent from named apical ancestors, and sometimes also by adoption by the biological descendants. This can create difficulties in identifying precisely who is within the claim group. Not all members of the claim group will necessarily be known to the organisers of the meeting or to one another. These matters can make notification of the whole of the claim group problematic. It can also lead to difficulties in determining who is eligible to vote at a claim group meeting.
Secondly, where there is a meeting of a large number of people, the counting of votes can be difficult. It is usually impracticable to facilitate a secret ballot. The meeting venue, together with the number of attendees, and issues with mobility of elderly people, may not lend itself to the creation of any clear physical division between those in favour of a resolution and those against. The use of coloured wrist bands is often used to assist in identifying those eligible to vote and the counting of votes.
Thirdly, there are administrative, record-keeping and logistical difficulties associated with a large claim group meeting. Such meetings often extend over more than one day and some people may attend on some days but not others. Some may arrive and leave at different times during a single day. Some people may not comply with instructions or requests, such as to sign attendance records, and that can be difficult to monitor.
Fourthly, there is no established and fixed set of rules that must be adhered to in the conduct of an authorisation meeting. Where s 251B(b) of the Act applies, the decision-making is conducted in accordance with a process agreed to and adopted by the claim group at the meeting. The evolving nature of discussion and the exigencies of time can result in departures from the agenda and changes in procedure as the meeting progresses. These changes may be expressly, but more commonly tacitly, agreed.
Fifthly, a meeting to consider the replacement of one applicant with another by its nature produces emotional responses, such that passionate views are expressed and tempers can overflow. The present case provides an example of such a meeting. That can make it difficult for the organisers of the meeting to ensure that order is kept and that the meeting is not unduly disrupted by one side or the other.
In Lawson, Stone J said at [28]:
I do not think, however, that the Act requires decisions of native title groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised.
I respectfully agree. Her Honour’s opinion takes into account the practical difficulties involved in organising and conducting a claim group meeting. A standard of perfection should not be required. A robust approach should be taken to determining whether or not the claim group as a whole has made any decision about authorisation.
Bearing these matters in mind, I will turn to consider each of the Current Applicant’s submissions.
Adequacy of the notice of meeting
The Current Applicant submits that the Meeting Notice distributed to members of the claim group and used in advertisements was inadequate because the notice was, in effect, a notice only directed to those members of the Gomeroi claim group who had the same concerns as those calling for the meeting to be held.
Further, the Current Applicant submits that the Meeting Notice was misleading and wrong because the Notice:
(a)stated that the Current Applicant decided to replace NTSCORP as the lawyer representing the Gomeroi People without the authority of the claim group, whereas the Current Applicant was so authorised;
(b)implied that the Current Applicant had executed a mining agreement without the authority of the claim group, whereas the Current Applicant was so authorised;
(c) stated that the registration for the meeting would be from 8:00 am - 12:00 pm on Day 1, whereas registration was permitted throughout the meeting;
(d)stated that there had been a “large number of requests” to call the meeting when no such requests were in evidence apart from the petition (the provenance and authenticity of which are in dispute);
(e)failed to disclose that the motivating purpose for NTSCORP convening the meeting was to have itself reinstated as the lawyers for the claim group and to provide a reason to refuse to hand over the file relating to the claim to Mr Hegney;
(f) failed to disclose the substantial interest NTSCORP had in the outcome of the 2016 Authorisation Meeting;
(g)failed to identify that the Gomeroi applicant would no longer consist of representatives of the 19 regions.
Whether notice was only directed to claim group members with similar concerns
The appellant submits that the circumstances are closely similar to those considered in Burragubba and that the present application should be dismissed for the reasons given in that case. In Burragubba, the meeting was called by a minority of the persons comprising the applicant. The meeting notice referred to concerns that negotiations with a mining company had proceeded without the authority of the claim group and that some of the persons comprising the applicant had received undisclosed fees for attending those negotiations. The notice stated that the matters to be discussed at the meeting included a resolution to authorise an application under s 66B of the Act to remove those persons. At the meeting, a resolution was carried replacing some members of the applicant.
The Current Applicant submits, paraphrasing the words of Reeves J in Burragubba at [33], that the Meeting Notice in this case was, in truth, a notice for a meeting of the members of the Gomeroi claim group who held the same concerns as those calling the meeting. They submit that the Meeting Notice should have included a paragraph saying that:
Members of the claim group should attend the meeting regardless of whether they had concerns about the change of lawyers and the agreement with mining companies because it was very likely that there would be a resolution that could result in the Current Applicant being replaced.
Counsel for the Current Applicant also submit that extra care had to be exercised in making sure that the notice was clear because “it’s well known that indigenous people in Australia, generally, haven’t had the education that non indigenous people have”. This is said to be relevant to attempting to ascertain objectively whether the notice alerted the whole of the claim group to the fact that the Current Applicant could be replaced. They submit that the same position would apply if it was a meeting notice addressed to a part of society in any lower socio-economic area, such as parts of western Sydney. Counsel relied upon a passage from Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255, where Rares J said at [40]:
The Court must be mindful that the class of persons to whom such notices will be addressed are not lawyers, but indigenous people from many varied walks of life who have greater and lesser degrees of sophistication and understanding.
That passage does not support the submission that Aboriginal people generally do not have the same level of education that non-indigenous people have. In my opinion, Rares J was saying no more than what is true of many groups of people, namely that they consist of people with a wide spectrum of education, literacy and comprehension. I do not accept that judicial notice should be taken of the assertion that Aboriginal people generally do not have the same level of education that non-indigenous people have.
I agree that a Meeting Notice should be drafted so that, to the extent possible, it can be understood by people throughout the spectrum. However, it will rarely be possible to give such notice to all members of the claim group. A claim group will usually include, for example, young children and other people who lack capacity. A practical evaluation has to be made as to whether the meeting notice is adequate to allow the members of the claim group with capacity to decide whether to attend and participate in the meeting.
Burragubba was decided in its own factual context and I do not accept that the findings made by Reeves J can simply be extrapolated to this case.
In this case, the Meeting Notice was entitled “Notice of an Authorisation Meeting of the Gomeroi People Native Title Claim Group”. Beside the notation “Who should attend?” appeared the words “The meeting is open to all members of the native title claim group in the Gomeroi People native title determination application.” (emphasis in original). The Meeting Notice then set out complaints about the conduct of the Current Applicant, namely the lack of authorisation by the claim group for the change of lawyers and the execution of the agreement with the mining companies. It set out an agenda for the meeting, which included “making decisions on whether the Gomeroi claim group wishes to continue to authorise the Current Applicant, or to replace the Current Applicant”.
The Meeting Notice was expressly addressed to “all” members of the Gomeroi claim group and invited all such members to attend the meeting. It expressly indicated that a purpose of the meeting was for the claim group to make a decision as to whether to continue to authorise the Current Applicant, or to replace the Current Applicant. The Meeting Notice set out the two particular concerns of those who wished the meeting to be called, but it is difficult to see why the articulation of these concerns should mean that the meeting was called only for those who shared the same concerns. It may be noted that the meeting was not expressed to be simply a meeting to authorise a new applicant, but rather was also to decide whether the claim group “wishes to continue to authorise the Current Applicant”. It would have made no material difference if the Meeting Notice had said that people should attend the meeting regardless of whether they had concerns set out in the Notice because it was very likely that there would be a resolution that could result in the Current Applicant being replaced. The Meeting Notice made it adequately clear that any member of the claim group who did not share the concerns expressed, or who did not want the Current Applicant to be replaced, could attend the meeting and have their say upon the proposed resolutions. In my opinion, the notice was a notice directed to all members of the Gomeroi claim group. It cannot be described as calling a meeting only for those members of the claim group who held the same concerns.
Whether the Meeting Notice was misleading
The Current Applicant submits that the Meeting Notice was misleading. Where a meeting is to be held to decide upon questions of authorisation, it is obviously necessary that notice of the meeting be given to members of the claim group. In Weribone, Rares J considered what is ordinarily required of such notice:
40…Notices of meeting of native title claim groups called to authorise the progress of claims under the Act need to be clearly, simply and directly expressed. The Court must be mindful that the class of persons to whom such notices will be addressed are not lawyers, but indigenous people from many varied walks of life who have greater and lesser degrees of sophistication and understanding. Ordinarily, it would not serve any purpose to require such notices to set out at great length and detail material of the nature that is sometimes sent to members of a corporation who are asked to consider amending or voting on resolutions put forward by directors. Nonetheless, the basic test that the common law has developed for notices calling meetings is suitable and adaptable to meetings such as those called under s 251B of the Act. The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. That test conforms to the substance of what the Full Court of this Court synthesised as the test for a valid notice of meeting identified in a well-known line of authority in corporations cases: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466B-C per Black CJ, von Doussa and Cooper JJ.
41Where a current applicant, or another person, wishes a meeting of a native title claim group to consider particular business or to proceed along a particular path that that applicant or person has in mind, the proponent must give fair notice of the business to be dealt with at the meeting to all members of the claim group. The notice must be such as will fully inform the persons entitled to attend the meeting, so that they can make an informed decision whether or not to be present.
In TJ v Western Australia (2015) 242 FCR 283, Rares J said at [91]:
Nonetheless, it is still necessary to give proper notice to all persons entitled to participate when convening such a meeting or, in this case, voting process, seeking authorisation under s 251B(b). All the members of the claim group have a reasonable opportunity to understand, on proper information, what the questions for their decision are, and to decide whether, and, if so how, to participate in any decision-making process. Any decision-making process under s 251B must proceed on the basis of proper notice and full information to all persons in the claim group, that enables them to decide whether to participate in and vote on the relevant authorisation.
(Citations omitted).
At one point in the meeting, Mr Waters said he had been asked to move a motion and said “Do it now cause they’re getting numbers. There’s a bus coming for numbers”. The Current Applicant submits that Mr Bergmann then facilitated Mr Waters moving Resolution #6, and did not act independently when he did so.
This allegation was not directly put to Mr Bergmann in cross-examination, although it was hinted at. In any event, I reject the submission that Mr Bergmann’s actions were influenced by Mr Waters’ comment. He merely got on with facilitating the meeting. I reject the submission that he colluded with Mr Waters or otherwise failed to act independently.
Whether there was unfairness in NTSCORP’s legal advisor addressing the meeting
The Current Applicant submits that NTSCORP’s legal advisor, Tom Keely SC, was permitted to address the meeting when neither the Current Applicant nor any of its legal advisers were afforded a similar opportunity, and where the meeting was already provided with an independent legal advisor.
However, the members of the Current Applicant were given the opportunity to address the meeting on Day 1, as was Mr Hegney. On Day 2, Mr Munro addressed the meeting at length concerning Resolution #3.
Mr Keely only spoke after Resolution #6 to remove the Current Applicant had been carried. I cannot see that there was any unfairness in allowing Mr Keely to address the meeting. To the extent that it was submitted that Mr Bergmann failed to exercise independence by allowing Mr Keely to address the meeting, I reject that submission.
I also reject the submission that it was somehow improper or impermissible for Mr Keely to advise the meeting to consider whether those they elected as the replacement applicant could work with NTSCORP. The claim group had already decided that NTSCORP act by their legal advisors. It was relevant for the claim group to consider whether the members of the replacement applicant could work with NTSCORP.
Departures from the agenda
The Current Applicant submits that all the resolutions, and Resolution # 6 in particular, were unfair and invalid because there was no update given to the meeting as to the progress of the native title claim, despite that being part of the agenda stated in the meeting notice, and a matter that was specifically requested by Mr Hegney and agreed to by Mr Bergmann. To the extent that there was no discrete update as to the progress of the native title claim, I accept that was a departure from the agenda.
Mr Bergmann said that the business discussed at the meeting was dictated to some extent by the way the meeting evolved. The Current Applicant had the opportunity to speak on Day 1, as did Mr Hegney, and they had the opportunity to inform the meeting of the progress of the native title claim if they considered it relevant to do so. They were the people in the best position to provide an update of such progress. When Mr Anderson and Mr Munro spoke, they made criticisms of NTSCORP’s previous handling of the native title claim and to that extent addressed the progress of the claim. I do not accept that the departure from the agenda had any material impact upon the decisions made by the claim group as a whole.
Whether the meeting should have been postponed because of the death of a claim group member
Ms Binge gave evidence that a senior member of the claim group died prior to the 2016 Authorisation Meeting and that she had asked NTSCORP to postpone the meeting. Her evidence was that the 2016 Authorisation Meeting ought not to have proceeded because it is a traditional Gomeroi law or custom that when a Gomeroi person dies “sorry business” is conducted, and a meeting of this kind should not be held. The funeral was originally to be held on the first day of the meeting. She says that NTSCORP in effect forced the family of the deceased person to postpone his funeral. Mr Alfred Priestly gives similar evidence. It is not clear whether any argument that the meeting did not properly make authorisation decisions by reason of these matters is pressed, as this evidence is not mentioned in the Current Applicant’s written submissions.
Ms Rotumah gave evidence that in the week before the meeting she had a conference with the deceased’s family members who indicated that the meeting should proceed. A number of the family members attended the meeting. Dr Rose’s opinion is that there are no strict, consistent rules surrounding “sorry business”.
The argument raised by the Current Applicant must be to the effect that, for s 251B(a) of the Act, there is a mandatory traditional law and custom of the claim group that a decision concerning authorisation must be postponed until after “sorry business” is concluded, despite the wishes of the family of the deceased person. I do not accept that the evidence demonstrates a law or custom to that effect.
Defects in nomination of, voting for and authorisation of the Replacement Applicant
The Current Applicant submits that on any interpretation of Resolution #1, the meeting was not conducted in accordance with that resolution. The Current Applicant complains of the nomination of candidates who would constitute the replacement applicant and the attempt in Resolution # 11 to refer to a resolution to be passed in the future.
Resolution #1 required that a motion must be moved and seconded by members of the group before it is decided on. In their oral submissions, the Current Applicant submits that six members of the replacement applicant were not validly nominated. Having regard to the oral submissions, I understand their complaints in their written submissions about other nominations not to be pressed.
Resolution # 1 only required a “motion” to be moved and seconded by members of the claim group. The nominations and seconding of the nominations of candidates were not motions, and were not required to be carried out in accordance with Resolution # 1. In case I am wrong on this issue, I will proceed to consider the submission on its merits.
The nomination of Sheryl Barnes was moved by Tony Haines, who is said not to appear on the Claim Group List and has not been proved to be a member of the claim group. Dr Rose’s evidence is that Tony Haines is the Darren Anthony Haines who appears on the Claim Group List. I accept that evidence.
The nomination of Maria Cutmore and Dennis Griffen is said to have been neither moved nor seconded. There is hearsay evidence from Ms Rotumah that Karen Craigie nominated Ms Cutmore, but that still leaves the absence of a seconder. There is hearsay evidence that the nomination of Mr Griffen was moved by Mitchum Neave, but again there was no seconder. The nomination of Natasha Talbott was neither moved nor seconded.
The nomination of Emily Roberts (Waters) was moved by John Roberts and seconded by Marjorie Vale. Both were observers and were not members of the claim group.
The nomination of Tanya Matthews was seconded by Wayne Matthews, who is said to have been impermissibly allowed to register on Day 2. I have already rejected the submission that registrations on Day 2 were impermissible and therefore reject this submission.
I understand the Current Applicant to also rely upon the fact that the nomination of Cyril Sampson was moved by Helen McCormick, who does not appear in the Claim Group List and who has not otherwise been demonstrated to be a member of the claim group. However, Mr Sampson was not elected and Ms McCormick’s involvement did not materially affect the outcome of the meeting.
The joint report of Mr Bergmann and Dr Prichard indicates that in relation to Ms Cutmore, Mr Griffen and Ms Talbott, their nominations were received from the floor of the meeting after the names of nominees and their nominators and seconders had been provided by the NTSCORP staff. They indicate that their records do not identify the names of the persons who nominated and seconded them. However, Mr Bergmann and Dr Prichard say that it was clear from the floor that the nominations were accepted and that the meeting wished to proceed to a vote. I accept the accuracy of their joint report in this respect.
I accept that the nominations of Ms Cutmore, Mr Griffen, Ms Talbott and Ms Roberts were inconsistent with Resolution # 1.
There were 48 people nominated as candidates for appointment as members of the applicant. In accordance with Resolution #10, the nine women and nine men with the highest number of votes were elected, and the 19th person elected was the person with the next highest number of votes. The persons elected included Ms Cutmore, Mr Griffen, Ms Talbott and Ms Roberts. I accept that by electing these people, the claim group decided to depart from the procedure set out in Resolution # 1 in respect of these four persons. That course was open to the claim group and did not require a formal resolution. The process by which these persons were nominated was much less significant that the outcome of the voting.
Further, it seems highly unlikely that the outcome would have been different if the nominations of Ms Cutmore, Mr Griffen, Ms Talbott and Ms Roberts had been in accordance with Resolution #1. I am satisfied that the irregularities identified did not materially affect the decision of the meeting to authorise the members of the Replacement Applicant.
The Current Applicant points out that John Roberts and Marjorie/Magoree Vale participated in the meeting, contrary to the statement made by Mr Bergmann at the commencement of the meeting that only members of the claim group were entitled to talk and voted the meeting. However, the only role these people played was to nominate Ms Emily Roberts (Waters). There is no evidence that they voted. I am not satisfied that the participation of Mr Roberts and Ms Vale materially affected the outcome of the authorisation meeting.
The Current Applicant submits that because the registration on Day 2 was impermissible or unfair Bruce Boney and Doug McGrady were ineligible for nomination. They also submit that the nominations of Kevin Sharpley, William Munro, Mark Sampson and Kenny Copeland were invalid because they were nominated or seconded by persons who had registered on Day 2. As I have ruled that registration on Day 2 was not impermissible, I reject these submissions.
The Current Applicant submits that because the mover of Resolution #10, Veronica Talbott, was registered on Day 2, the resolution was not validly moved. I reject this submission.
The Current Applicant submits that the election process for the replacement applicant was a shambles. I do not accept this description of the election process. It is true that the meeting was running out of time on Day 2 and the election of the replacement applicant had to be rushed. That resulted in less care being taken with nominations than was desirable. Despite this, it is clear that the members of the replacement applicant were elected by the persons then present at the meeting in accordance with the process under Resolution #10. I am satisfied that the election of the members of the Replacement Applicant reflects the will of the claim group as a whole.
The Current Applicant submits that the replacement applicant is not appropriately representative of the Gomeroi claim group in accordance with Gomeroi laws and customs. They submit that decisions concerning all of the claim area must be made by persons who can collectively speak for all of the claim area. This is said to require representatives of each of the 19 areas, but it is said that there is no member of the replacement applicant who can speak for ten areas namely Ashford, Boggabilla, Collarenebri, Coonabarabran, Coonamble, Gulargambone, Narrabri, Terry Hie Hie, Tingha and Toomelah.
I am not satisfied on the evidence that is available that there is a traditional Gomeroi law or custom that requires decision-making of the kind required in respect of a native title application to be made by persons who collectively represent the 19 regions. In any event, Dr Rose expresses the opinion that the Replacement Applicant has members with ancestral connections to each of the ten areas. I accept that evidence.
Consideration of cumulative effect of defects
I have identified defects in the Meeting Notice, the registration process, record keeping and the conduct of the meeting. I have concluded that individually these defects made no material difference to the outcome of the meeting.
It is also necessary to consider whether the defects I have identified are collectively or cumulatively likely to have affected the outcome of the meeting. I am satisfied even in combination, these defects made no material difference.
Exercise of the discretion
Section 66B(2) of the Act gives the Court a discretion to refuse to make an order for replacement of the current applicant even if it is satisfied that the grounds set out in s 66B(1) are established.
Section 66B(1)(b) of the Act requires that in every application to replace the current applicant, the proposed replacement applicant must be authorised by the claim group to make the application and to deal with matters arising in relation to it. Another requirement, in a case such as the present, is that the current applicant is no longer authorised by the claim group. The section emphasises that it is for the native title claim group itself to make decisions concerning authorisation of an applicant to represent the group. The exercise of the discretion to refuse to make an order under s 66B will be inconsistent with the decision of the claim group and should not lightly be exercised. It is a significant matter, and one potentially fraught with problems, to leave a claim group with an applicant whom the claim group has rejected as their representative.
The Current Applicant submits that an important discretionary consideration is that there is no indication from the Meeting Notice or the resolutions passed at the 2016 Authorisation Meeting of any member of the claim group having any concerns about the manner in which the Current Applicant has carried out its primary role in connection with the native title determination application. They rely on Burragubba, where Reeves J held that the discretion under s 66B(2) would have been exercised against making an order for replacement of the applicant for two reasons, one of which was that there was no indication of any members of the claim group having any concerns about the manner in which the existing applicant was carrying out its primary role of conducting the native title application. His Honour considered this to be important as the application had been on foot for about 13 years and it was imperative that it be brought to finalisation as soon as it was reasonably possible, and that the existing applicant be permitted to continue to pursue the application without the hindrance or disruption that would undoubtedly be associated with the replacement of the applicant.
In my opinion, there is a clear indication in the petition, in the Meeting Notice and in Resolutions #5 and #6 that there was substantial concern among the claim group about the Current Applicant’s conduct of the native title application. That concern was that the Current Applicant had replaced NTSCORP (or the legal practice funded by NTSCORP) as their legal representatives in relation to the native title application. This was a concern about the Current Applicant’s conduct of the application
Even if members of the claim group were only dissatisfied with the Current Applicant’s entry into the s 31 agreement, I would not have found that there was a sufficient basis to decline to make an order under s 66B of the Act. While the primary function of an applicant is in connection with a native title application, the applicant also has important secondary functions such as entry into agreements under s 31(1)(b) of the Act. The dissatisfaction of the claim group as a whole expressed in the form of Resolution #6 and #11 with such secondary aspects of the Current Applicant’s conduct provides a powerful reason for making the order.
Further, this is not a situation like in Burragubba where the application had been on foot for about 13 years and Reeves J considered it imperative that the matter should be brought to finalisation as soon as reasonably possible and that there would be delay if the applicant were replaced. In this case, the application was commenced six years ago and there is no indication that it will be unduly delayed by the replacement of the applicant.
The Current Applicant also submits that the discretion should be exercised against making an order because the Replacement Applicant cannot speak for the whole of the Gomeroi country, whereas the Current Applicant can do so. However, I have not accepted that there is any traditional law or custom requiring that the applicant consist of persons who can represent the 19 areas of the claim and, in any event, there are members of the claim group who are appropriately representative of each of the 19 areas.
I reject the other matters relied on by the Current Applicant in its written submissions as forming any basis for a refusal to exercise the discretion to make an order under s 66B of the Act.
Conclusion
I find that the members of the Current Applicant are no longer authorised by the claim group to make the native title determination application and to deal with the matters arising in relation to it. I find that the members of the Replacement Applicant are authorised by the claim group to make the native title application and to deal with matters arising in relation to it.
I will make orders accordingly.
I certify that the preceding two hundred and fifty-six (256) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 7 December 2017
SCHEDULE OF PARTIES
NSD 2308 of 2011 Respondents
Fourth Respondent:
MOREE LOCAL ABORIGINAL LAND COUNCIL
Fifth Respondent:
SAM HEGNEY SOLICITORS
Sixth Respondent:
TELSTRA CORPORATION LIMITED
Seventh Respondent:
ALTOMOTE HOLDINGS PTY LTD
Eighth Respondent:
JONATHON NOEL PHELPS AND WENDY SUSAN PHELPS
Ninth Respondent:
KENNETH DANIEL MALONE AND JULIANNE PATRICIA MALONE
Tenth Respondent:
STEPHEN R CROWLEY AND THERESE A CROWLEY
Eleventh Respondent:
THE CUAN PASTORAL COMPANY PTY LTD
Twelfth Respondent:
WILLIAM NELSON BAKER AND MARGARET ELLEN BAKER
Thirteenth Respondent:
MARK ALLAN WINTER
Fourteenth Respondent:
CURLEWIS COAL AND COKE PTY LIMITED; GOONBRI COAL COMPANY PTY LIMITED
Fifteenth Respondent:
JACARANDA MINERALS LIMITED AND MINERALS AUSTRALIA PTY LIMITED
Sixteenth Respondent:
MANGOOLA COAL OPERATIONS PTY LIMITED
Seventeenth Respondent:
MUSWELLBROOK COAL COMPANY LIMITED
Eighteenth Respondent:
NORTHERN ENERGY CORPORATION LIMITED
Nineteenth Respondent:
SANTOS QNT PTY LIMITED; EASTERN ENERGY AUSTRALIA PTY LIMITED; EASTERN STAR GAS LIMITED; HILLGROVE ENERGY PTY LIMITED; NARRABRI POWER PTY LIMITED; SANTOS WILGA PARK PTY LIMITED; BETEL GAS PTY LIMITED; EASTERN STAR OPERATIONS
Twentieth Respondent:
ULAN COAL MINES LIMITED
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