Kum Sing on behalf of the Mitakoodi and Mayi People #5 v State of Queensland
[2017] FCA 860
•28 July 2017
FEDERAL COURT OF AUSTRALIA
Kum Sing on behalf of the Mitakoodi & Mayi People #5 v State of Queensland [2017] FCA 860
File number: QUD 556 of 2015 Judge: REEVES J Date of judgment: 28 July 2017 Catchwords: NATIVE TITLE – application under s 66B of the Native Title Act 1993 (Cth) to replace members of the authorised applicant – where applicant is no longer authorised by the claim group to make the application – whether authorisation meeting was validly convened and conducted under s 251B of the Native Title Act 1993 (Cth) – whether claim group members were given a reasonable opportunity to decide whether to attend where no video-conferencing facilities were offered – decision-making process under s 251B of the Native Title Act 1993 (Cth) – discretion under s 66B(2) of the Native Title Act 1993 (Cth) to replace authorised applicant Legislation: Native Title Act 1993 (Cth) Cases cited: Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373
Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147
NC (Deceased) v Western Australia (No 2) [2013] FCA 70
Date of hearing: 23 March 2017 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Ms E Longbottom Solicitor for the Applicant: Queensland South Native Title Services Solicitor for the Interlocutory Applicant: Mr C Hardie of Just Us Lawyers Counsel for the Respondent: Ms S McBratney Solicitor for the Respondent: Crown Law ORDERS
QUD 556 of 2015 BETWEEN: TANYA KUM SING AND ORS ON BEHALF OF THE MITAKOODI & MAYI PEOPLE #5
Applicant
AND: STATE OF QUEENSLAND AND ORS
Respondent
JUDGE:
REEVES J
DATE OF ORDER:
28 JULY 2017
THE COURT ORDERS THAT:
1.Pursuant to s 66B of the Native Title Act 1993 (Cth), Edward Ah Sam, Pearl Connelly, Kay Douglas, Norman Douglas, Brian Douglas, Tanya Kum Sing and Ronald Major replace Brenda Lucas, Gabrielle Biffin, Karl Howard, Sharn Fogarty, George Kenny, Tanya Kum Sing and Emily Patricia Asse as the Applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
This is the second relatively recent application under s 66B of the Native Title Act 1993 (Cth) (the NTA) to replace the current members of the authorised applicant for the Mitakoodi and Mayi native title determination application. In its amended form, the Mitakoodi and Mayi application was filed with the Court on 13 November 2015. It relates to an area of land and waters in the Cloncurry and Julia Creek districts, extending north from the Selwyn Range along the McKinlay, Fullarton, Cloncurry and Saxby Rivers to the Norman River, covering approximately 29,210 square kilometres. The native title claim group for the application comprises the descendants of four apical ancestors: Minnie, Thomas “Tiger” Mitchell, Dinah and Topsy.
This current native title determination application is the latest in a long series of such applications filed with respect to the same claim area dating back to 1996. The first of those applications was lodged with the National Native Title Tribunal in October 1996. Thereafter, four further applications were filed with the Court, one each in November 2000, April 2003, July 2006 and November 2011. The original application and the first three of the aforementioned applications were dismissed by Dowsett J in December 2009 because of non-compliance with an order made in October 2008: [2009] FCA 1528. The fifth and last application filed in November 2011 had a much shorter life. It was dismissed by Dowsett J in December 2011 at the request of the applicant.
Tensions between the majority of the members of the Mitakoodi native title claim group (the descendants of Minnie), most of whom live on, or near, the Mitakoodi claim area, and the minority of the members (the descendants of Thomas “Tiger” Mitchell, Dinah and Topsy), most of whom live away from that claim area, appear to be the primary cause of this long series of native title determination applications and this s 66B application. These tensions are exemplified by a statement contained in an affidavit made by Ms Kum Sing which has been filed in support of this application. Ms Kum Sing is one of the members of the Minnie descent group who, as mentioned above, comprise the majority of the Mitakoodi claim group. In that affidavit, Ms Kum Sing deposed that she was “not happy that persons from other descent groups were being flown over from the coast to walk our country when they had never set foot on it before. Our elders have forbidden us to share knowledge with these strangers”.
THE THREE AUTHORISATION MEETINGS
Before detailing how these tensions have affected this application, it is convenient to set out the history of the three authorisation meetings which were conducted in June, September and December 2015, the last of which led to this application.
The first authorisation meeting in June 2015
The first meeting was held on 13 June 2015 at Mount Isa. It was held in order to authorise an applicant to file the Mitakoodi and Mayi application. There were 120 members of the Mitakoodi native title claim group in attendance at that meeting. The vast majority of those persons attended the meeting in person (84), while a smaller minority (36) attended from other locations by video-conference facilities. The Minnie descent group constituted slightly in excess of 70% of the members present, with the other 30%, approximately, coming from the Thomas “Tiger” Mitchell, Dinah and Topsy descent groups.
The main resolutions passed at that meeting were:
(a)the adoption of a decision-making process for the purposes of s 251B of the NTA; and
(b)the authorisation of 15 members of the Mitakoodi claim group to be the applicant for the Mitakoodi and Mayi application.
The 15 members of the Mitakoodi applicant mentioned in subparagraph (b) above included two persons from each of the Thomas “Tiger” Mitchell, Dinah and Topsy descent groups and nine persons from the Minnie descent group. The Mitakoodi and Mayi application filed with the Court on 8 July 2015 stated that this group comprised the applicant that was authorised by the members of the Mitakoodi claim group to make the application on its behalf.
Following this meeting, concerns were expressed by the six members of the Mitakoodi applicant from the three minority descent groups about the way in which the nine members from the Minnie majority descent group were conducting the Mitakoodi and Mayi application. Those concerns led to the second authorisation meeting being called and held.
The second authorisation meeting in September 2015
The second authorisation meeting was also held at Mount Isa. It was held on 19 September 2015. There were 87 members of the Mitakoodi native title claim group in attendance. Of those present, slightly less than 70% were descendants of Minnie, while slightly more than 30% were descendants of Thomas “Tiger” Mitchell, Dinah and Topsy. Most of the members of the Minnie descent group attended in person and most of the members of the other three descent groups attended from other locations by video-conference facilities. The main resolution passed at that meeting had the effect of replacing the 15 members of the Mitakoodi applicant with seven persons: two each from the Minnie, Thomas “Tiger” Mitchell and Dinah descent groups and one from the Topsy descent group. One notable consequence of this change was that two senior members of the Minnie descent group were removed as members of the Mitakoodi applicant: Ms Pearl Connelly and Ms Kay Douglas. Another was the significant reduction – from nine to two – in the number of members of the Mitakoodi applicant who came from the Minnie descent group.
There was nothing recorded in the minutes concerning the decision-making process that was adopted at that meeting. However, in his affidavit filed in connection with this application, Mr Kelly, the lawyer acting for the current applicants deposed that the decision-making process that was adopted at the June authorisation meeting was followed. On 20 October 2015, Deputy Registrar Fewings made orders that the seven persons mentioned above replace the then existing 15 persons as the authorised applicant for the Mitakoodi and Mayi application.
The third authorisation meeting in December 2015
Following the September authorisation meeting, the two members of the Mitakoodi applicant from the Minnie descent group had concerns about the way in which the activities of the Mitakoodi applicant were being conducted by the five members of the other three descent groups. Ms Kum Sing was one of the two Minnie descent group members. She said in her affidavit filed in connection with this application that:
After that authorisation meeting, I attended meetings of the Applicant. At these meetings my fellow Minnie Applicant and I disagreed with the Applicants from other descent groups on a number of important issues such as selecting of an anthropologist, the appointment of a future acts lawyer, whether our claim should be extended further to cover more country and whether more descent lines should be added to the claim. In addition, we were not happy that persons from other descent groups were being flown over from the coast to walk our country when they had never set foot on it before. Our elders have forbidden us to share our knowledge with these strangers.
As well, the other Minnie descent group member, Ms Brenda Lucas, is recorded in the minutes of a teleconference meeting of the members of the Mitakoodi applicant held on 8 December 2015 as making claims (which were denied) that the other members present were voting in a “block”.
The third authorisation meeting – the meeting to which this s 66B application relates – was held on 19 December 2015 at Cloncurry. The notice for that meeting was advertised on 2 December 2015 in the Koori Mail newspaper and in the North West Star newspaper on 3 December 2015. As well, on 27 November 2015, notices were sent to all those Mitakoodi and Mayi People who were members of the Mitakoodi Aboriginal Corporation, the Mitakoodi Kurrithila/Mayi Aboriginal Corporation and the Mitakoodi Traditional Owners Aboriginal Corporation. Notices were also posted on community boards and shop windows in Cloncurry on 2 December 2015.
Fifty members of the Mitakoodi claim group attended that meeting, 48 of whom were solely descended from Minnie. The other two attendees were descendants of both Minnie and Topsy. The decision-making process adopted at that meeting was a majority vote from the floor of those members of the Mitakoodi claim group in attendance at the meeting. Five persons who were descendants of Minnie and two persons who were descendants of Topsy were authorised to be members of the Mitakoodi applicant by a resolution passed at that meeting.
It is worth mentioning at this point that the number of attendees at the December 2015 meeting was low by comparison to the other two meetings. One likely explanation for this low attendance was a letter dated 4 December 2015 that QSNTS, the native title representative body under Part 11 of the NTA for the region which covers the Mitakoodi claim area, sent to the members of the Mitakoodi claim group. Referring to the Cloncurry meeting, that letter stated:
There is a high level of conflict within and between the families that make up the Mitakoodi and Mayi. Whilst this is not uncommon in native title groups the conflict, in this instance, is coming to the point of making the Mitakoodi and Mayi claim unworkable. For QSNTS to continue to allocate resources to an unworkable claim has the potential to put us in breach of our obligations under the NTA and our funding agreement.
We advise you not to further disrupt the claim by authorising a new applicant and we encourage you to allow the current applicant to go about its task of prosecuting your claim with our assistance unhindered.
PROCEDURAL HISTORY
The present application was filed on 12 February 2016. It seeks to remove Ms Brenda Lucas, Ms Gabrielle Biffin, Mr Karl Howard, Ms Sharn Fogarty, Mr George Kenny, Ms Tanya Kum Sing and Ms Emily Patricia Asse as members of the Mitakoodi applicant and replace them with Mr Edward Ah Sam, Ms Pearl Connelly, Ms Kay Douglas, Mr Norman Douglas, Mr Brian Douglas, Ms Tanya Kum Sing and Mr Ronald Major. It will be noted that Ms Tanya Kum Sing is the only person who is common to both these groups. Hereafter in these reasons, I will refer to the former group as “the current applicants” and the latter group as “the replacement applicants”.
Throughout 2016, attempts were made to resolve the differences that existed within the Mitakoodi claim group both with respect to this s 66B application and to the conduct of the Mitakoodi and Mayi application more broadly. As a part of those attempts, Deputy Registrar Fewings conducted a number of case management conferences, one of which was held at Cloncurry in May 2016. Unfortunately, those attempts were unsuccessful and the present s 66B application therefore proceeded to a contested hearing in 2017.
THE RELEVANT LEGISLATIVE PROVISIONS AND PRINCIPLES
The current application is made under s 66B(1)(a)(iii) of the NTA. That section relevantly provides:
(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:
…
(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;
Importantly for the purposes of this application, s 66B(2) gives the Court a discretion whether to make an order replacing an applicant by providing that: “[t]he Court may make the order if it is satisfied that the grounds are established”.
In Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147 (Daniel) (at [17]), French J listed five conditions that must be established for a successful application under s 66B(1). Those conditions are as follows:
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.
The authorisation provisions which are engaged by condition 5 above are contained in s 251B of the NTA (see Daniel at [14]). A native title claim group must, therefore, comply with that section if it wishes to change the membership of its authorised applicant. It provides:
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.
It can be seen that one of two forms of decision-making process are to be followed when a native title claim group seeks to authorise an applicant or, as noted above, to authorise a replacement applicant. They are: the form that exists under the traditional laws and customs of the native title claim group concerned ((a) above); or, if that traditional form does not exist, whatever alternative form of decision-making that is agreed to, and adopted by, the members of the native title claim group ((b) above). Put differently, if the native title claim group concerned does not have a traditional decision-making process as described in s 251B(a), it becomes necessary for it to agree to, and adopt, an alternative form of decision-making process under s 251B(b) and to make the requisite authorisation decision in accordance with that process.
However, it is to be noted that s 251B does not contain any requirement that a native title claim group must hold a meeting in order to authorise a person or persons to make a native title determination application on its behalf. It follows that s 251B does not require the agreement to, and adoption of, the alternative decision-making process referred to above to occur at a meeting. Nor does it require the authorisation decision that follows the decision-making process so adopted, to be made at a meeting. Nonetheless, the practice of convening and conducting meetings for the purposes of authorising an applicant, or replacement applicant, under s 251B has become the most practical and effective means of achieving that outcome: see Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 (Burragubba) at [29].
To achieve a valid authorisation of an applicant for the purposes of s 251B(b), such a meeting must be convened and conducted in a manner that results in a decision which is made by the whole of the native title claim group in question: see Burragubba at [22]. However, this does not mean that all of the members of the native title claim group have to attend the meeting, but rather that all of the members of the claim group have to be offered a reasonable opportunity to decide whether to attend the meeting: see Burragubba at [31]. The current applicants did not raise any issue about the adequacy of the notice for the December 2015 meeting and, while in its written submissions the State of Queensland, the first respondent, did raise some issues in that respect, it did not ultimately pursue them. It is therefore unnecessary to elaborate on what a fair and proper notice for an authorisation meeting entails: see Burragubba at [32].
THE THREE MAIN ISSUES
Instead, the three main issues in this application relate to the manner in which the December 2015 meeting was conducted and to this Court’s discretion to make the order sought by the replacement applicants. The first issue concerns the lack of opportunity afforded to those members of the Mitakoodi claim group who live away from the Mitakoodi claim area to participate in the meeting at Cloncurry. More specifically, the question raised by the current applicants is whether, absent subsidising the costs of travel to Cloncurry, those members of the Mitakoodi claim group should have been given the opportunity to attend the December 2015 meeting by video-conference facility, as they were with the September 2015 meeting that was held in Mount Isa. The second issue is related to the first. The State contended that the resolutions that were passed at the December 2015 meeting were not effective for the purposes of s 251B because that meeting was not truly representative of the whole of the Mitakoodi claim group. The third issue concerns the Court’s discretion under s 66B(2) (see at [17] above). That issue is whether, even if the replacement applicants have met all the conditions for an order under s 66B(1), the Court should, in the circumstances, exercise its discretion to make that order.
THE VIDEO-CONFERENCING ISSUE
The contentions
On this issue the replacement applicants frankly stated that video-conferencing facilities were not offered to those wishing to attend the December 2015 meeting as they preferred to have the meeting face-to-face on their traditional country. They submitted that there was no requirement under the NTA that video-conferencing facilities had to be offered to those wishing to attend such a meeting. In any event, they claimed they did not have the financial resources to provide video-conferencing facilities in Cloncurry. Finally, they submitted that there was no evidence that the failure to offer such facilities prevented any member of the Mitakoodi claim group from attending the December 2015 meeting.
For their part, the current applicants submitted that the December 2015 meeting was not a properly constituted meeting for the purposes of s 251B of the NTA because those members of the Mitakoodi claim group who lived at locations away from the claim area were not given a reasonable opportunity to participate in that meeting. They submitted that about 55% of the Mitakoodi claim group members lived away from the Mitakoodi claim area; some of whom lived significant distances away. They claimed that the travel costs associated with attending the meeting in Cloncurry placed an undue burden on those members. In support, they relied on the affidavits of Mitakoodi claim group members who lived on the Queensland coast, who claimed that it was too expensive for them to attend the December 2015 meeting in person. They submitted that, in the circumstances, this cost burden was easily remedied by providing video-conferencing facilities to enable those members to participate in the meeting. They pointed to the fact that the September meeting that was held at Mount Isa was linked by video-conferencing facilities to Townsville, Rockhampton and Brisbane.
Consideration
As I have already mentioned above (see at [21]), while there is no requirement for a native title claim group to have a meeting to authorise its applicant or a replacement applicant under s 251B of the NTA, the practice of convening and conducting such a meeting has developed as the most practical and effective means of a native title claim group achieving such an authorisation. Because there is no requirement for a meeting in s 251B of the NTA, there are no provisions in that section prescribing how such a meeting is to be convened and conducted; and nor are there any provisions elsewhere in the NTA dealing with those matters. I interpose to note that, as well, there is no evidence that the Mitakoodi claim group had adopted any rules dealing with the convening and conduct of any authorisation meetings it held. Consequently, where an authorisation meeting is to be convened and conducted, it is left to the persons organising the meeting to decide questions such as when and where the meeting is to be held and what items of business are to be discussed at it. Often, but not always, those organising such an authorisation meeting are assisted by the native title representative body (see Part 11 of the NTA) for the region in which the claim area is located. In this case, that body was QSNTS. However, it is apparent from the letter it sent to the members of the Mitakoodi claim group on 4 December 2015 (see at [13] above) that it had decided not to assist the organisers of the December 2015 meeting to convene and conduct that meeting. Indeed, in that letter it advised against authorising a new applicant for the Mitakoodi and Mayi application.
Against this background, the organisers of the December 2015 meeting decided that it should be conducted at Cloncurry, which is on, or near to, the Mitakoodi claim area. Apart from raising the video-conferencing issue, I did not understand the current applicants to be contending that this choice of location was unreasonable. If I am incorrect about this, I reject that contention. The meeting’s location was a matter for the organisers to decide and, given the nature of the business to be conducted at that meeting and the fact that most of the members of the Minnie majority descent group lived at, or near to, the Mitakoodi claim area, the choice of Cloncurry as the location for the meeting was, in my view, reasonable. On the same topic, while there were some complaints in the evidence about holding the meeting so close to Christmas, I did not understand anyone to claim that the date chosen was unreasonable. Instead, the complaints of the current applicants focused on the cost and inconvenience occasioned to those members of the Mitakoodi claim group who lived away from Cloncurry in attending the meeting.
For the following reasons, I do not consider the current applicants’ contentions on this video-conferencing issue can be accepted. I begin by reiterating the guiding principle that I have outlined above (see at [22]): the obligation imposed on the organisers of the Cloncurry meeting was to offer all the members of the Mitakoodi claim group a reasonable opportunity to decide whether to attend the December 2015 meeting. They were not obliged to convene a meeting of all the members of the Mitakoodi claim group. There is no dispute in this matter that the members of the Mitakoodi claim group were given proper notice of the December 2015 meeting. That notice offered them an opportunity to attend that meeting on 19 December 2015, at Cloncurry, in person. I have already concluded above that, in the circumstances, there is nothing unreasonable in the location, or the date, the organisers chose for the meeting. I therefore consider this notice discharged the organisers’ obligations I have mentioned above.
Having been offered a reasonable opportunity to attend the meeting, the members of the Mitakoodi claim group, including those who lived at a distance from Cloncurry, had to decide whether or not to attend or, more specifically, whether to commit the time and money necessary to travel to Cloncurry for that purpose. It is true that the travel expenses of those members of the Mitakoodi claim group who lived at some distance from Cloncurry meant that those members would have had to bear a more significant cost burden than other members attending the meeting. It is for this reason that those members claim they should have been allowed to attend the meeting by video-conferencing facility.
The organisers of the December 2015 meeting have given evidence, which I accept, that they did not have the resources to meet the costs of providing video-conference facilities at Cloncurry. It is also relatively clear from its letter (see at [13] above) that QSNTS was not willing to assist the organisers to meet those costs. Aside from those two sources, there is no evidence that anyone else was willing to meet those expenses, including any of the members of the Mitakoodi claim group who wanted to attend the meeting by that means. It follows, in my view, that the current applicants are essentially seeking to shift the cost burden of attending the Cloncurry meeting from those members of the Mitakoodi claim group living away from Cloncurry, onto the organisers of the meeting. I do not consider that the obligation imposed on the organisers of the Cloncurry meeting to offer all the members of the Mitakoodi claim group a reasonable opportunity to attend that meeting extended to bearing the costs of providing video-conferencing facilities to allow whichever members of the Mitakoodi claim group who wished to attend the meeting by that means to do so. Having reached this conclusion, it is unnecessary to consider what the position would have been if there was evidence that those members living away from Cloncurry had been willing to meet those costs.
For these reasons, I reject the current applicants’ contentions that the failure to provide video-conferencing facilities to attend the December 2015 meeting had the consequence that that meeting was not properly constituted for the purposes of s 251B of the NTA.
THE DECISION-MAKING PROCESS ISSUE
The second issue concerns the number of attendees at the December 2015 meeting and the fact that the vast majority of them came from the Minnie descent group. In particular, the State claimed that, since only 50 members of the Mitakoodi claim group attended the meeting and all but two of them were solely descendants of Minnie, that meant that the meeting was not representative of the whole of the Mitakoodi claim group. Accordingly, so the State claimed, the resolutions passed at that meeting were not effective for the purposes of s 251B of the NTA. I do not consider these contentions can be accepted. First, the fact that there were no members of the Thomas “Tiger” Mitchell and Dinah descent groups and only two members from the Topsy descent group, was, I find, the consequence of a decision by the members of those descent groups to boycott the December 2015 meeting primarily brought about by the letter QSNTS sent to all the members of the Mitakoodi claim group on 4 December 2015 (see at [13] above). Presented with the advice contained in that letter and faced with having to commit the time and money to attend the Cloncurry meeting, I find that the members of those three descent groups, with the exception of two members from the Topsy descent group who did attend, made a deliberate decision not to attend the meeting. That being so, I do not consider this tactic affected the effectiveness of the December 2015 meeting for the purposes of s 251B of the NTA. The organisers of the meeting complied with their obligation to offer all the members of the Mitakoodi claim group a reasonable opportunity to decide whether to attend the meeting and, if a particular group of those members chose to boycott the meeting and not attend, that decision did not, in my view, detract from the effectiveness of the meeting for the purposes of s 251B of the NTA.
Before leaving this aspect of this issue, it is worth recording that, as it happened, the representative status of the December 2015 meeting was a matter that was raised at an early stage of that meeting. The minutes of the meeting disclose that the question whether the meeting was sufficiently well-attended to make authoritative decisions about the Mitakoodi and Mayi application was discussed. After that discussion, a resolution was carried unanimously to the following effect:
Those members of the Mitakoodi and Mayi People present at the meeting are able to make decisions concerning the Mitakoodi and Mayi #5 Native Title Determination Application on behalf of the Native Title Claim Group and are satisfied that the people present at the meeting are sufficiently representative of the Claim Group to make authoritative decisions, and sufficient notice was given of this meeting to the Mitakoodi and Mayi People to enable authoritative decisions to be made today about the Mitakoodi and Mayi #5 Native Title Claim.
It is therefore implicit from this resolution that the members of the Mitakoodi claim group present at the December 2015 meeting affirmed the various decisions of the organisers of that meeting, including its location, date and format. This is significant, in my view, when regard is had to the fact that the Minnie descent group, whose members comprised most, if not all, of those present at the December 2015 meeting, also constituted a majority of the members of the Mitakoodi claim group.
There was also some suggestion in oral submissions, as I understood it, that the June 2015 meeting had decided that the Mitakoodi claim group had a traditional decision-making process and that process should have been followed at the December 2015 meeting in order for the resolutions passed at that meeting to be effective for the purposes of s 251B. According to Mr Kelly’s affidavit, that traditional decision-making process was to occur within each descent group first and then all the members of the claim group were to come together and vote by a show of hands on the floor of the meeting in a non-traditional decision-making process. If I am correct in apprehending this submission, I do not consider it can be accepted. Resolution 4 of the minutes of the June 2015 meeting record that:
RESOLUTION 4: CONFIRMATION OF NO UNIFIED TRADITIONAL DECISION-MAKING PROCESS FOR NATIVE TITLE APPLICATIONS
1.The members of the Mitakoodi and Mayi present acknowledge that each family descent group has active traditional decision making processes.
2.In terms of authorising this native title decision we acknowledge there is no unified traditional decision making process that the Mitakoodi and Mayi must use for authorising this native title determination application.
3.The Mitakoodi and Mayi people acknowledge that for native title decisions at this meeting the following process will be used:
I.each family descent group will meet and discuss and reach a decision following their own traditional decision making process; and
II.the decision will ultimately be decided by a show of hands on the floor of the meeting with members of each family descent group voting as per their agreed family descent group decision.
Paragraph 2 of Resolution 4 above confirms that, according to the Mitakoodi claim group members present at the June 2015 meeting, “there is no unified traditional decision making process that the Mitakoodi and Mayi must use for authorising this native title determination application”. That being so, the Mitakoodi claim group had confirmed it did not have a traditional decision-making process under s 251B(a). Therefore, it was a matter, in my view, for each authorisation meeting, in the terms of s 251B(b), to agree to, and adopt, a non-traditional decision-making process with respect to the authorisation of its applicant. I should add that none of the parties contended that a claim group was bound to agree to, and adopt, the same non-traditional decision-making process consistently at all authorisation meetings it held (see NC (Deceased) v Western Australia (No 2) [2013] FCA 70 at [86]–[97] per McKerracher J).
Finally, it is convenient to record what decisions were made at the Cloncurry meeting with respect to the authorisation of the Mitakoodi replacement applicant. First, the following resolution was put to the meeting and carried unanimously:
RESOLUTION 6
The Meeting resolves that the process for making decisions at this Meeting will be as follows:
a)There will be reasonable opportunity for informed discussion about each matter before a decision is made on it;
b)The Following process will then be used to make a decision about each matter:
i)A clearly worded motion reflecting the general consensus will be read to the meeting;
ii)The proposed resolution will be read out to the meeting;
iii)The proposed resolution must be moved and seconded by members of the group before it is decided on;
iv)The decision by the group about the proposed resolution will then be made by a show of hands for and against;
v)The decision reflecting the majority of those people in attendance and voting on the motion will be an authoritative decision of the Mitakoodi and Mayi claim group; and
vi)Decisions are binding unless altered by a resolution at a properly notified and convened Mitakoodi and Mayi People Native Title Claim Group Meeting.
(Emphasis omitted)
Having passed that resolution, the meeting then proceeded to pass, among others, the following two resolutions unanimously:
RESOLUTION 8
The current Applicant for the Mitakoodi and Mayi People #5 comprised of: Tanya Kum Sing, Brenda Lucas, Gabrielle Biffin, Sharn Fogarty, Emily Patricia Asse, Karl Howard and George Kenny is no longer authorised by the claim group to make the application and deal with matters arising in relation to it.
RESOLUTION 9
That this meeting authorises the following members of the native title claim group to make an application to the Federal Court for an order pursuant to s66B of the Native Title Act that they replace the current Applicant in Mitakoodi and Mayi People #5 (QUD556/2015) and be the Applicant for the substantive application and, subject to the terms of appointment, deal with all matters in relation to it:
Minnie descent group:
Tanya Kum Sing
Ronald Major
Pearl Connelly
Edward Ah Sam
Kay Douglas
Topsy descent group:
Norman Douglas
Brian Douglas
(Emphasis omitted)
In my view, these resolutions all accord with the requirements of s 251B and I therefore reject the current applicants’ contentions challenging the effectiveness of the decision-making process that was adopted and followed at the Cloncurry meeting. Having regard to all the evidence, I therefore consider the replacement applicants have complied with each of the pertinent conditions set out in Daniel (see at [18] above), noting that the alternative condition 4 is not relevant in the circumstances of this application.
THE DISCRETION ISSUE
The third issue raises the question whether, having concluded that the replacement applicants have met all the conditions for an order, I should, in all the circumstances, exercise my discretion to make that order. This issue takes me back to the tensions within the Mitakoodi claim group which I mentioned at the outset of these reasons. Notwithstanding those tensions, I consider I should exercise my discretion to make an order replacing the current Mitakoodi applicant with the replacement applicant. My reasons for this conclusion are as follows. To begin with, I should make it clear that I do not pretend for a moment that this order will remove the longstanding tensions within the Mitakoodi claim group. On the other hand, given the longevity and entrenched nature of those tensions, I do not consider that making this order is likely to worsen them. Nonetheless, there are two beneficial effects that I consider this order is likely to have. First, somewhat ironically, I consider that it is likely to remove some of the tension that has been present within the Mitakoodi applicant itself since about the time of the first authorisation meeting in June 2015. That is so because the majority Minnie descent group will now dominate with five of the seven members on the Mitakoodi applicant. At the same time, two of the other descent groups will have no representation. Secondly, having taken back control of the Mitakoodi applicant, it is now up to the majority Minnie descent group members to ensure that this new regime operates effectively and efficiently. That is to say, I consider this order will place a heavy responsibility on those members of the Mitakoodi applicant to ensure that the Mitakoodi and Mayi application is henceforth prosecuted with diligence. Finally, I should note that, whilst the membership of the Mitakoodi applicant will not henceforth reflect the descent group make-up of the Mitakoodi claim group, that state of affairs has come about largely as a result of the members of the other three descent groups choosing to boycott the Cloncurry meeting. Having done that, they can hardly complain that they do not have any representation on the Mitakoodi applicant. Taking into account all these factors, I have concluded that it is appropriate for me to exercise my discretion to make the order sought by the replacement applicants.
CONCLUSION
For these reasons, I propose to make the orders sought by the replacement applicants.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 28 July 2017
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