Williams on behalf of the Danggan Balun (Five Rivers) People v State of Queensland

[2023] FCA 639

FEDERAL COURT OF AUSTRALIA

Williams on behalf of the Danggan Balun (Five Rivers) People v State of Queensland [2023] FCA 639  

File number(s):	QUD 331 of 2017
Judgment of:	COLLIER J
Date of judgment:	14 June 2023
Catchwords:	NATIVE TITLE – application under s 66B of the Native Title Act 1993 (Cth) to replace applicant – whether individual applicant no longer authorised by the claim group – breach of claim group terms and conditions of appointment of applicant – application granted
Legislation:	Native Title Act 1993 (Cth) ss 66B, 66B(1), 66B(1)(a)(ii), 66B(2), 251B, 251B(a) and 251B(b)
Cases cited:	Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147
Division:	General Division
Registry:	Queensland
National Practice Area:	Native Title
Number of paragraphs:	25
Date of hearing:	Determined on the papers
Solicitor for the Interlocutory Applicant:	Mr T Wishart of Queensland South Native Title Services Ltd

ORDERS

QUD 331 of 2017

BETWEEN:

TED WILLIAMS & ORS ON BEHALF OF THE DANGGAN BALUN (FIVE RIVERS) PEOPLE

Applicant

AND:

STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

BRISBANE CITY COUNCIL (and other named in the Schedule)
Third Respondent

ORDER MADE BY:	COLLIER J
DATE OF ORDER:	14 JUNE 2023

THE COURT ORDERS THAT:

1.Pursuant to s 66B of the Native Title Act 1993 (Cth), the Applicant in this proceeding, jointly comprised of Gordon “Ted” Williams, Rose Page, Louisa Bonner, Shaun Davies, Israel Bundjuri and Germaine Paulson, is replaced by Gordon “Ted” Williams, Rose Page, Louisa Bonner, Shaun Davies and Germaine Paulson.

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

REASONS FOR JUDGMENT

COLLIER J

1. By interlocutory application filed on 25 January 2023 the Native Title Applicant, excluding Mr Israel Bundjuri,in Ted Williams & Ors on behalf of the Danggan Balun (Five Rivers) People (QUD 331 of 2017) (the Interlocutory Applicant) seeks the following order:

   1.That pursuant to section 66B of the Native Title Act 1993 (Cth), the Applicant in this proceeding, jointly comprised of Gordon "Ted" Williams, Rose Page, Louisa Bonner, Shaun Davies, Israel Bundjuri and Germaine Paulson, are replaced by Gordon 'Ted" Williams, Rose Page, Louisa Bonner, Shaun Davies and Germaine Paulson.

2. Plainly the purpose of this interlocutory application is the removal of Mr Israel Bundjuri as a member of the Native Title Applicant in QUD 331 of 2017 (Danggan Balun Applicant).

3. An affidavit of Mr Gordon “Ted” Williams was filed in support of the interlocutory application on 25 January 2023. Further material filed in support of the interlocutory application included an affidavit of Mr Thomas Trevitt Scott filed on 10 March 2023. Mr Scott is a lawyer employed by Queensland South Native Title Services Limited (QSNTS). QSNTS is the solicitor on the record for the Interlocutory Applicant in this matter.

4. The interlocutory application was opposed by Mr Bundjuri, who was self-represented. Mr Bundjuri filed an affidavit on 17 March 2023.

5. The matter has been determined on the papers.

   BACKGROUND

6. Pursuant to resolutions of an authorisation meeting of the Danggan Balun People held on 15 February 2020 at Beaudesert (Authorisation Meeting) the Danggan Balun Applicant comprised:

   (1)Anthony Dillon

   (2)Louisa Bonner

   (3)Shaun Davies

   (4)Rose Page

   (5)Germaine Paulson

   (6)Israel Bundjuri

   (7)Ted Williams

7. Resolutions passed by the members of the Danggan Balun Native Title Claim Group (Claim Group) at the Authorisation Meeting included the following:

   Resolution #8: Terms and Conditions of Appointment of Applicant:

   The members of the Claim Group to be authorised at this meeting to comprise the Applicant for the Application are authorised subject to the Terms and Conditions of Appointment tabled at this meeting.

8. By Order of the Federal Court of 7 April 2022, Anthony Dillon ceased to be a member of the Danggan Balun Applicant.

9. The Terms and Conditions of Appointment of Applicant (Terms and Conditions of Appointment) adopted by resolution of the Claim Group at the Authorisation Meeting included the following:

   5.If one or more members of the persons comprising the Applicant is incapable, unable or unwilling to continue to act as a member of the Applicant whether as a result of death, ill-health or any other reason, the remaining Applicants may continue to act as the Applicant and may file an application to amend the Application to remove those persons’ names from the list of persons comprising the Applicant, without the need to convene an authorisation meeting.

   6.        Any individual who is a member of the persons comprising the Applicant and:

   (a) who does not attend two consecutive Applicant meetings without providing reasonable notice and excuse; or

   (b) acts inconsistently with any resolution passed by the Applicant or the Claim Group at a properly called and constituted authorisation meeting; or

   (c) he or she seeks to delay or obstruct the progress of the Application; or

   (d) he or she seeks to pursue a position that is inconsistent with the recognition of Native Title under the NTA; or

   (e) refuses to sign or unreasonably delays signing an affidavit as required under section 62 of the NTA (for the purpose of this condition, unreasonable delay includes but is not limited to not signing the affidavit at the earliest opportunity to do so); or

   (f) notifies QSNTS that they are no longer willing to continue to act as a member of the Applicant;

   will be regarded as unwilling or unable to continue as a member of the Applicant.

   EVIDENCE OF THE APPLICANT

10. In his affidavit Mr Williams gave evidence that Mr Bundjuri breached the Terms and Conditions of Appointment by failing to attend 10 consecutive Danggan Balun Applicant meetings without providing reasonable notice and excuse. The Interlocutory Applicant contended accordingly that Mr Bundjuri is to be regarded as unwilling or unable to continue as a member of the Danggan Balun Applicant.

11. In summary, Mr Williams deposed:

    ·All members of the Danggan Balun Applicant attended a meeting of 12 March 2020 where Mr Ricardo Martinez, solicitor on the record for the Danggan Balun Applicant, read through and provided advice on the Terms and Conditions.

    ·On 23 June 2021 at a meeting of the Danggan Balun Applicant, the individuals comprising the Interlocutory Applicant discussed Mr Bundjuri’s failure to attend meetings of the Danggan Balun Applicant held after February 2021.

    ·On 8 June 2022 the individuals comprising the Interlocutory Applicant met with QSNTS to discuss, inter alia, the failure of Mr Bundjuri to attend meetings of the Danggan Balun Applicant. At that meeting Mr Scott advised the Interlocutory Applicant that Mr Bundjuri had not responded to any invitations to attend meetings of the Danggan Balun Applicant since early 2021.

    ·On 14 October 2022, in accordance with instructions of the Interlocutory Applicant, Mr Scott emailed Mr Bundjuri regarding his non-attendance. In that email Mr Scott identified 8 consecutive Danggan Balun Applicant meetings between 11 November 2021 and 14 October 2022 which Mr Bundjuri had failed to attend, being meetings held on:

    ·11 November 2021 (meeting invitation sent on 5 November 2021)

    ·13 December 2021 (meeting invitation sent on 10 December 2021)

    ·24 May 2022 (meeting invitation sent on 18 May 2022)

    ·8 June 2022 (meeting invitation sent on 25 May 2022)

    ·12 August 2022 (meeting invitation sent on 29 July 2022)

    ·19 August 2022 (meeting invitation sent on 4 August 2022)

    ·16 September 2022 (meeting invitation sent on 12 September 2022)

    ·14 October 2022 (meeting invitation sent on 13 October 2022)

    Mr Scott’s email suggested that either Mr Bundjuri resign as a member of the Danggan Balun Applicant, or that the remaining members of the Danggan Balun Applicant proposed to file an interlocutory application pursuant to s 66B of the Native Title Act 1993 (Cth) (Native Title Act) seeking removal of Mr Bunjuri as a member of the Danggan Balun Applicant.

    ·On 20 October 2022 in an email to Mr Scott and copied (inter alia) to other members of the Danggan Balun Applicant and QSNTS employees, Mr Bundjuri referred to his university studies, apologised for his non-attendance at meetings of the Danggan Balun Applicant, and requested reconsideration of the Danggan Balun Applicant’s decision-making process to allow Mr Bundjuri to develop projects and programs for the Danggan Balun People.

    ·On 24 October 2022 in a letter addressed to “Chairperson and Board Members of The Danggan Balun Aboriginal Corporation (ICN: 9085)”, Mr Bundjuri stated (inter alia) that the Native Title Act and the Corporations Act 2001 (Cth) were invalid and illegal.

    ·The Danggan Balun Applicant subsequently held meetings on 31 October 2022 and 11 November 2022 which Mr Bundjuri did not attend.

    ·Mr Bundjuri has failed to attend, in total, 10 meetings of the Danggan Balun Applicant.

    ·Mr Bundjuri's non-attendance has made it difficult to convene valid meetings of the Danggan Balun Applicant to provide instructions regarding the prosecution of the Danggan Balun Claim, including multiple mediations with indigenous respondents, and matters incidental to the Claim, such as negotiating and signing agreements to manage Danggan Balun future act and cultural heritage.

12. Mr Scott also gave evidence referable to the non-attendance of Mr Bundjuri at meetings of the Danggan Balun Applicant. In his affidavit filed 10 March 2023 Mr Scott relevantly deposed:

    6.I have read the affidavit of Mr Gordon Ted Williams filed on 24 January 2023 in support of the Interlocutory Application (the Williams Affidavit).

    7. I refer to paragraph 19 of the Williams Affidavit and annexure titled GTW-3 referred to therein containing a letter from Mr Martinez to Mr Bundjuri about Mr Bundjuri's nonattendance and which contains a table outlining the Applicant meetings that Mr Bundjuri had failed to attend at the point in time the letter was sent. I have reviewed the files contained in the QSNTS database and I confirm that that mentioned table is an accurate depiction of Mr Bundjuri's attendance as at the date of the letter contained in annexure GTW-3 of the Williams Affidavit.

    8. Based on my review of the file, I confirm that Mr Bundjuri has failed to attend an Applicant Meeting since from 11 November 2021, being thirteen consecutive meetings.

    QSNTS process of notifying Applicant Meetings

    9. I refer to the meetings listed in paragraph 23 of the Williams affidavit and below outline the process QSNTS implements for notifying Danggan Balun Applicant meetings:

    (a)A QSNTS Community Relations Officer will attempt contact by telephone and text message with each member of the Applicant to ascertain their availability for a meeting;

    (b) Upon confirmation of availability of the majority of the Applicant, a meeting date is set and subsequently notified by way of email (Email Notification). The Email Notification is sent by a QSNTS Paralegal Officer to all members of the Danggan Balun Applicant, including Mr Bundjuri, in accordance with the contact details contained on the QSNTS database. Mr Martinez and myself are carbon copied into each Email Notification.; and

    (c) A QSNTS Community Relations Officer sends a further reminder text message is sent to those who confirmed attendance in accordance with [9](a).

    10.Based on my review of the file and inquiries with the relevant QSNTS Community Relations Officers, Mr Bundjuri did not respond to any of the calls or text messages sent to him in relation to Applicant Meetings held since 11 November 2021 to the present.

    11. Based on my review of the file and inquiries with the relevant QSNTS Paralegal Officers, Mr Bundjuri received each Email Notification but did not respond to any of the Email Notifications sent for all Applicant Meetings held since 11 November 2021 to the present, nor was any email received indicating there was a bounce back or failure with delivery.

    12. Having regard to the minutes of all Applicant Meetings held since 11 November 2021, no reasonable notice and excuse was ever proffered by Mr Bundjuri.

    EVIDENCE OF MR BUNDJURI

13. Mr Bundjuri filed an affidavit on 17 March 2023. In summary, Mr Bundjuri deposed as follows:

    ·He was unaware of another Claim Group meeting and has seen no public notice or announcement to remove him as a member of the Danggan Balun Applicant.

    ·The Australian Constitution is invalid.

    ·The Federal Court of Australia is a corporation, and is not a Chapter III Court. It has no jurisdiction to hear this interlocutory application.

    ·The State of Queensland and the Commonwealth of Australia are foreign corporations registered in Washington DC, and along with their subsidiary corporations, such as the Federal Court of Australia, they have no power to deal with sovereign lands.

    ·He does not consent to doing business with the Court.

14. Mr Bundjuri did not specifically address evidence of the Interlocutory Applicant.

    CONSIDERATION

15. Section 66B of the Native Title Act relevantly provides :

    66B Replacing the applicant

    Replacement in case of consent or absence of authority

    (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;

    (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.

    (2)       The Court may make the order if it is satisfied that the grounds are established.

    …

    (emphasis added)

16. Mr Bundjuri does not consent to his replacement or removal from the Danggan Balun Applicant. He can, however, be removed as a member of the Danggan Balun Applicant pursuant to s 66B(1)(a)(ii) of the Native Title Act. In considering whether he should be removed pursuant to that section, the essential questions are whether:

    (1)Mr Bundjuri is no longer authorised by the Claim Group to be a member of the Danggan Balun Applicant;

    (2)the Interlocutory Applicant is authorised by the Claim Group to make the current interlocutory application seeking to have Mr Bundjuri removed (see French J in Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147 at [17]); and

    (3)whether the Court should exercise its discretion to make the order sought.

17. The answer to the first question can be found in the Terms and Conditions of Appointment. The Terms and Conditions of Appointment were decided by the Claim Group at the Authorisation Meeting. The Claim Group was empowered to impose such terms on the appointment of the Danggan Balun Applicant pursuant to s 251B of the Native Title Act, namely:

    ·in accordance with the process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind (s 251B(a)); or

    ·in the absence of such process, in accordance with a process of decision-making agreed to and adopted by the persons in the native title 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 (s 251B(b)).

18. It is not in dispute that the Terms and Conditions of Appointment were adopted by resolution of the Claim Group, and are applicable to ongoing membership of the Danggan Balun Applicant.

19. Mr Bundjuri’s authorisation as a member of the Danggan Balun Applicant was subject to the Terms and Conditions of Appointment, including terms 5 and 6.

20. On the material before the Court, Mr Bundjuri does not dispute that:

    ·he has attended no Danggan Balun Applicant meetings after and including 11 November 2021;

    ·he was given reasonable notice of each Danggan Balun Applicant meeting;

    ·he failed to respond to any notices of Danggan Balun Applicant meetings;

    ·he failed to provide reasonable notice and excuse for his non-attendance at Danggan Balun Applicant meetings; and

    ·his failure to attend any Danggan Balun Applicant meetings since November 2021 evinced his unwillingness to continue to act as a member of the Danggan Balun Applicant.

21. For the purposes of the Terms and Conditions of Appointment Mr Bundjuri is to be regarded as unwilling or unable to continue as a member of the Danggan Balun Applicant.  In that respect he is no longer authorised by the Claim Group as a member of the Danggan Balun Applicant and is able to be removed.

22. In relation to the second question, the present interlocutory application is brought before the Court by all members of the Danggan Balun Applicant except Mr Bundjuri. Clearly the individuals comprising the Interlocutory Applicant are members of the Claim Group for the purposes of s 66B(1) of the Native Title Act. Further, as is clear from term 5 of the Terms and Conditions of Appointment, if one or more members of the persons comprising the Danggan Balun Applicant is incapable, unable or unwilling to continue to act as a member of the Danggan Balun Applicant, the remaining members may continue to act as the Danggan Balun Applicant and may file an application to amend the Native Title Determination Application to remove those persons’ names from the list of persons comprising the Danggan Balun Applicant, without the need to convene an authorisation meeting. Contrary to Mr Bundjuri’s contention, it was unnecessary for the Danggan Balun Claim group to hold a public meeting to consider whether he should be removed from the Danggan Balun Applicant.

23. In relation to the third question I am satisfied that the order sought by the Interlocutory Applicant should be made. As Mr Williams explained in his affidavit:

    27.Mr Bundjuri's non-attendance has made it difficult to convene valid meetings of the Applicant to necessarily provide instructions regarding the prosecution of the Danggan Balun People Claim, including multiple mediations with indigenous respondents, and matters incidental to our native title claim, such as negotiating and signing agreements to manage Danggan Balun future act and cultural heritage.

24. I note that Mr Bundjuri does not wish to be removed from the Danggan Balun Applicant, however this runs contrary to his conduct in failing to either attend Danggan Balun Applicant meetings, or explain his repeated absences. I also note his statements concerning the validity of inter alia the Constitution, the Native Title Act, and the Federal Court of Australia, and accord them no weight.

    CONCLUSION

1. It is appropriate to make an order under s 66B(2) of the Native Title Act removing Mr Bundjuri as a member of the Danggan Balun Applicant, and replacing the Danggan Balun Applicant as presently constituted with the individuals comprising the Interlocutory Applicant.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

Associate:

Dated:       14 June 2023

SCHEDULE OF PARTIES

QUD 331 of 2017
Applicants
Second Applicant	DANGGAN BALUN (FIVE RIVERS) PEOPLE
Third Applicant	SHAUN DAVIES
Fourth Applicant	GERMAINE PAULSON
Fifth Applicant	ISRAEL BUNDJURI
Sixth Applicant	LOUISA BONNER
Seventh Applicant	ROSE PAGE
Respondents
Fourth Respondent	GOLD COAST CITY COUNCIL
Fifth Respondent	LOGAN CITY COUNCIL
Sixth Respondent	REDLAND CITY COUNCIL
Seventh Respondent	SCENIC RIM REGIONAL COUNCIL
Eighth Respondent	WESLEY AIRD
Ninth Respondent	AXEL NEIL ROBIN BEST
Tenth Respondent	HAGUE WESLEY BEST
Eleventh Respondent	ARABELLA KATRINA DOUGLAS
Twelfth Respondent	BENJAMIN JOHN TRAVERS
Thirteenth Respondent	ENERGEX LIMITED ABN 40 078 849 055
Fourteenth Respondent	ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
Fifteenth Respondent	% NATIONAL AUSTRALIA TRUSTEE LTD AS TRUSTEE FOR SEA WORLD PROPERTY TRUST (SEA WORLD)
Sixteenth Respondent	THE STAR ENTERTAINMENT QLD CUSTODIAN PTY LTD
Seventeenth Respondent	THE WELL SAILS INC.
Eighteenth Respondent	GOLD COAST FISHERMAN'S CO-OPERATIVE ASSOCIATION LTD
Nineteenth Respondent	LIONEL RIESENWEBER
Twentieth Respondent	MICHAEL WILKINSON
Twenty First Respondent	AMPLITEL PTY LTD
Twenty Second Respondent	TELSTRA CORPORATION LIMITED ABN 33 051 775 556
Twenty Third Respondent	VODAFONE HUTCHISON AUSTRALIA PTY LIMITED (ACN 096 304 620)
Twenty Fourth Respondent	VODAFONE NETWORK PTY LIMITED
Twenty Fifth Respondent	QUEENSLAND BULK WATER SUPPLY AUTHORITY TRADING AS SEQWATER