Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales

[2019] FCA 277

FEDERAL COURT OF AUSTRALIA

Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales [2019] FCA 277

File number:	NSD 6020 of 2001
Judge:	ROBERTSON J
Date of judgment:	7 March 2019
Catchwords:	NATIVE TITLE – application by members of a native title claim group for an order that those members replace the current applicant on the basis that one of the current applicants has died – application unopposed – Held: application granted
Legislation:	Native Title Act 1993 (Cth) s 66
Date of hearing:	Determined on the papers
Date of last submissions:	25 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	8
Solicitor for the Applicant:	NTSCORP Limited
Solicitor for the First Respondent:	NSW Crown Solicitor
Solicitor for the Second Respondent:	Australian Government Solicitor
Solicitor for the Third, Fourth and Fifth Respondents:	Chalk and Behrendt
Solicitor for the Sixth Respondent:	Marsdens Law Group
Solicitor for the Seventh Respondent:	NTSCORP Limited

ORDERS

NSD 6020 of 2001

BETWEEN:

BYRON BAY BUNDJALUNG PEOPLE

Applicant

AND:

ATTORNEY GENERAL OF NEW SOUTH WALES

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JALI LOCAL ABORIGINAL LAND COUNCIL (and others named in the Schedule)

Third Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	7 MARCH 2019

THE COURT ORDERS THAT:

1.Pursuant to s 66B(1)(a)(ii) of the Native Title Act 1993 (Cth), Dulcie Nicholls, Yvonne Stewart, Stanley Kay, Norman Graham, Brian Kelly and Judith Davies jointly replace the current applicant.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

1. By its interlocutory application filed on 25 February 2019, the applicant applies, pursuant to s 66B(1)(a)(ii) of the Native Title Act 1993 (Cth), that Dulcie Nicholls, Yvonne Stewart, Stanley Kay, Norman Graham, Brian Kelly and Judith Davies jointly replace the current applicant.

2. The applicant relies on an affidavit of Mishka Holt, principal solicitor, dated 25 February 2019 and an affidavit by each of the persons named in [1] above, being:

   Dulcie Nicholls, pensioner, dated 14 February 2019;

   Yvonne Stewart, aged care coordinator AMS, dated 15 February 2019;

   Stanley Kay, entertainer, dated 15 February 2019;

   Norman Graham, ranger OEH, dated 14 February 2019;

   Brian Kelly, labourer, dated 14 February 2019; and

   Judith Davies, carer, dated 15 February 2019.

3. Section 66B(1) of the Native Title Act provides that one or more members of the native title claim group in relation to a claimant application may apply to this Court for on order that the member, or the members jointly, replace the current applicant for the application on the grounds, relevantly, that a person who is, either alone or jointly with others, the current applicant has died, and the member or members are authorised by the claim group to make the application and deal with matters arising in relation to it.  In the present case, as referred to below, the person who has died is Lorraine Harding.

4. I am satisfied, for present purposes, that on 17 August 2018 a number of resolutions were duly passed at a duly convened meeting of members of the Bundjalung People of Byron Bay #3 native title claim group.  In particular, I find in accordance with the evidence of Ms Holt that the claim group used the decision-making process which she described at [17] of her affidavit to unanimously authorise changes to the persons to jointly comprise the applicant in the native title determination application, those persons being Dulcie Nicholls, Yvonne Stewart, Norman Graham, Brian Kelly, Judith Davies and Stanley Kay, and to unanimously authorise those persons to make that application and deal with matters arising in relation to it.

5. As noted by Mr Brian Kelly in his affidavit of 14 February 2019, the native title claim group discussed at the meeting of 17 August 2018 the sad passing of Lorraine Harding, one of the persons who jointly comprised the applicant in the native title application, and the claim group discussed and agreed that the remaining six people who had partly comprised the applicant should remain and be authorised as the new applicant for the native title application.

6. The affidavits of Stanley Kay, Judith Davies, Norman Graham and Yvonne Stewart are to the same effect.  Dulcie Nicholls was not able to attend that meeting and deposes to what occurred on information given to her by her daughter, Theresa Nicholls, who did attend the meeting.

7. The present application is not opposed.

8. I am satisfied that the order replacing Lorraine Harding as an applicant should be made on the basis that she has died.  I am also satisfied that Dulcie Nicholls, Yvonne Stewart, Stanley Kay, Norman Graham, Brian Kelly and Judith Davies jointly should replace Lorraine Harding and are authorised by the claim group to make the application and deal with matters arising in relation to it. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       7 March 2019

SCHEDULE OF PARTIES

NSD 6020 of 2001
Respondents
Fourth Respondent:	TWEED BYRON LOCAL ABORIGINAL LAND COUNCIL
Fifth Respondent:	NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Sixth Respondent:	BYRON SHIRE COUNCIL
Seventh Respondent:	NTSCORP LIMITED