Barnes on behalf of the Wangan and Jagalingou People v State of Queensland - [2010] FCA 533 - FCA 2010 case summary — Zoe

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Barnes on behalf of the Wangan and Jagalingou People v State of Queensland

[2010] FCA 533

Federal Court of Australia|2010-05-28|Before: Ms J, Collier J

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Source facts

Court

Federal Court of Australia

Decision date

2010-05-28

Before

Ms J, Collier J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The matter before me relates to an application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) ("the Act") by a claim group whose members identify as Wangan and Jagalingou ("the claim group"). The substantive application ("the application") is in respect of land and waters in the Central Queensland coal fields and gem fields around Clermont, an area of approximately 30,277 square kilometres. 2 In substance, the dispute is as to whether members of the claim group have properly authorised a new applicant in respect of the application, replacing the applicant on the record. 3 The applicant currently on the record comprises Jessie Diver, Patrick Fisher, Janice Barnes, Owen McEvoy, and Deree King. A notice of motion filed on 2 March 2010 by Jessie Diver, Patrick Fisher, Lynette Landers, Irene White, Elizabeth McAvoy, Patrick Malone, and Les Tilley seeks an order from this Court that they replace Jessie Diver, Patrick Fisher, Janice Barnes, Owen McEvoy, and Deree King as the applicant for the application. (For convenience I shall refer to the applicant group in respect of the application as "the Applicant".) The notice of motion follows an authorisation meeting of the claim group held in Bundaberg on 6 February 2010 ("the authorisation meeting") during which resolutions were passed replacing the applicant in the terms reflected in the order sought. 4 Although the State of Queensland is nominally the respondent to the notice of motion, the State took very little part in the proceedings before me, and made no submissions. 5 The key changes to the composition of the applicant sought are clearly: · the retention of Jessie Diver and Patrick Fisher in the description of the applicant; · the removal of Janice Barnes, Owen McEvoy, and Deree King from the description of the applicant; and · the addition of Lynette Landers, Irene White, Elizabeth McAvoy, Patrick Malone and Les Tilley to the description of the applicant. 6 At the hearing, appearances were entered by Ms Barnes and Mr McEvoy opposing the notice of motion. Ms Barnes and Mr McEvoy were not legally represented. However both Ms Barnes and Mr McEvoy made lengthy oral submissions, and I allowed them to give oral evidence as well as to cross-examine witnesses called by the applicants to the notice of motion. 7 Further, it became clear at the hearing following oral submissions by Ms Barnes and Mr McEvoy (TS p 32 ll 35-47; p 33 ll 1-14) that, in addressing the objections of Ms Barnes and Mr McEvoy to the replacement of the applicant, the following issues required determination: 1. Were members of the claim group intimidated and bullied at the authorisation meeting? 2. Were those in attendance at the authorisation meeting actually members of the claim group and therefore entitled to vote in respect of resolutions including the replacement of the applicant? 3. Did the non-completion of anthropological and genealogical reports relating to the substantive application invalidate the resolution to replace the applicant? 4. Did Mr McEvoy in fact second Resolution 2 at the authorisation meeting as deposed by Ms Royan in her affidavit sworn 12 April 2010? 8 Before turning to these issues it is appropriate to outline the background to the notice of motion.

[2]

BACKGROUND 9 As I have already observed, an authorisation meeting of members of the Wangan and Jagalingou people was held at Bundaberg on 6 February 2010. Notice of the meeting had been advertised in the Koori Mail, Brisbane Courier Mail and the Rockhampton Bulletin on 9, 13 and 16 January 2010. A copy of the relevant advertisement is annexed to the affidavit sworn 12 April 2010 by Ms Jennifer Jones, a corporate manager employed by Queensland South Native Title Services ("QSNTS"). It is clear from the advertisement that the meeting: · was described as an authorisation meeting relating to the substantial proceedings before the Court; · was intended for attendance by persons who fit the description in the advertisement or otherwise claimed to be Wangan and Jagalingou People; · was to be held for a number of reasons, including "to ensure that the Applicant for the claim is properly authorised by the claim group and if not to appoint a new Applicant for the Wangan and Jagalingou Claim in accordance with s66B of the Native Title Act". 10 The advertisement nominated Ms Christine Royan of QSNTS as the contact person for registration of interest by persons intending to attend the meeting. Ms Royan is a Communities Officer with QSNTS and is responsible for liaising with the native title claim group and the applicant in respect of the application. It appears she took a central role in the organisation and facilitation of the authorisation meeting. 11 The applicants to the notice of motion submitted that the authorisation meeting resulted in the claim group duly authorising the applicant under s 66B of the Act. This was achieved by the approval of eight resolutions by significant majorities of those attending the meeting. The details of these resolutions can be found at CR 1 in the affidavit of Christine Royan, sworn 12 April 2010. Of particular note are Resolutions 1, 2, 5 and 6 which read as follows: Resolution 1 The meeting confirms that any persons here today who are not, in accordance with what was set out in the public notice, entitled to attend this meeting, may remain but only as passive observers and may not speak and cannot vote. Resolution 2 The meeting confirms that all other persons present at this meeting are accepted as descendants of the pre-sovereignty society for the claim area and under the laws and customs of the claim group are entitled to fully participate in the proceedings as members of the claim group. The meeting also notes that Maggie Miller should be referred to as Maggie of Clermont. Resolution 5 This meeting decides that the current Applicant is no longer authorised and determines to select a new Applicant. Resolution 6 That the following persons will constitute the applicant subject to the matters set out in resolution 4: Lynette Landers Jessie Diver Irene White Elizabeth McAvoy Patrick Malone Les Tilley Patrick Fisher 12 In relation to the authorisation meeting, Ms Royan deposed in her affidavit sworn 12 April 2010 that: · She was responsible for ensuring that the people who attended were recorded on an attendance sheet. The number recorded in attendance was 102 people; · Her analysis of the attendance shows that the vast majority of those attending were present because of their descent from an apical ancestor recognised as being of the Wangan and Jagalingou people; · A full power point presentation was provided at the meeting containing draft resolutions for consideration, and the resolutions were displayed on a large screen at the front of the meeting room; · All resolutions proposed were moved and seconded, and attendees were asked whether they wished to speak for or against any resolution; · Before Resolution 5 was passed, members of the existing applicant group were invited to address the authorisation meeting on the progress of the claim and what they had done for the claim group during their time as applicant; · Before Resolution 6 was passed, QSNTS staff left the authorisation meeting and waited outside for approximately three quarters of an hour. When they rejoined the authorisation meeting, seven names from the claim group members had been put forward by the respective family groups to be the new applicant; · All of the resolutions at the authorisation meeting were passed by overwhelming majorities; · The authorisation meeting was conducted in an orderly fashion; · The authorisation meeting was held over a period of approximately six and a half hours. This was partly because anyone who wished to speak was given an opportunity to do so; and · She did not see or hear anybody being coerced, rushed or bullied into making decisions at the authorisation meeting. 13 Each of Jessie Diver, Patrick Fisher, Lynette Landers, Irene White, Elizabeth McAvoy, Patrick Malone, and Les Tilley swore substantially identical affidavits on 25 February 2010 supporting the notice of motion before the Court. In summary, each deponent swore that: · they were members of the claim group for the application; · they supported the notice of motion to replace the applicant for the application; · they attended a meeting of the claim group on 6 February 2010 at Bundaberg. This meeting was held to determine whether the applicant was authorised to represent the claim group, and if not to select a replacement applicant; · at the authorisation meeting it was decided by the members of the claim group in attendance that the application would be dealt with according to certain principles; · at the authorisation meeting they were authorised by the members of the claim group to apply to the court for an order pursuant to s 66B of the Act that the seven deponents be named as the applicant for the application on behalf of the claim group; · they consented to becoming the applicant; · they had prior notice of the authorisation meeting and as a result of discussions with other members of the claim group believed that knowledge of the purposes of the meeting was widespread throughout the claim group; · they were aware of the authorisation meeting from notices about the matters for decision at that meeting that they had received from QSNTS and from telephone calls from QSNTS staff; · they estimated that there were approximately 100 claim group members in attendance at the meeting; · from their knowledge of the members of the claim group, they believed that those members of the claim group in attendance at the meeting were broadly representative of the claim group, and were capable of making decisions on behalf of the claim group; · while attending the authorisation meeting they also observed that the decision-making process which had been agreed to and adopted for the purpose of selecting the persons who are to constitute the applicant was properly followed. 14 Elizabeth McAvoy and Irene White gave further oral evidence at the hearing supporting the notice of motion. 15 In contrast to the evidence in support of the notice of motion, each of Owen McEvoy (4 March 2010), Janice Barnes (4 March 2010) and Deree King (3 March 2010) swore substantially identical affidavits opposing the notice of motion. Their evidence was that: · they were invited by QSNTS to attend a native title authorisation meeting in Bundaberg on 6 February 2010; · on behalf of their respective families, they were of the opinion that the authorisation process was not transparent, and that they were "railroaded" by QSNTS and people who were not members of the claim group. 16 Interestingly on 8 April 2010 Jessie Diver swore a further affidavit deposing to concerns with the process at the authorisation meeting in terms similar to those expressed by Owen McEvoy, Janice Barnes and Deree King. The content of Ms Diver's affidavit sworn 8 April 2010 stands in complete contrast to her earlier affidavit supporting the notice of motion. I note however that Ms Diver did not appear at the hearing of the notice of motion, and therefore was not available for cross-examination in respect of the inconsistencies between these affidavits. From the bar table Mr Hardie of QSNTS said that QSNTS had asked Ms Diver to attend Court to explain her position, and had offered to pay her fares and accommodation so that she could be there, but Ms Diver was unable to attend Court (TS p 10 ll 12-16). 17 The inconsistencies in Ms Diver's evidence are not explained. In the absence of Ms Diver, I consider that no weight can be attached to any of her evidence.

[3]

RELEVANT LEGISLATION 18 The Court's authority to order the replacement of an applicant is derived from s 66B of the Act. The application before the Court relies on ss 66B(1)(a)(iii), 66B(1)(b) and 66B(2) which provide as follows: (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) … (ii) … (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) …; 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. 19 Section 251B explains the meaning of persons being authorised by all the persons in the claim group: 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.

[5]

Were individuals intimidated and bullied at the authorisation meeting? 22 This question invites a consideration by the Court of the manner in which the authorisation meeting was conducted and, in particular, whether participants were given a reasonable opportunity to put forward their respective points of view before the resolutions were carried. While the affidavit and oral evidence of Mr McEvoy and Ms Barnes deposes that they were "railroaded" by representatives of QSNTS and people who were not members of the claim group, on the evidence before me I am not persuaded that the behaviour of anyone at the authorisation meeting could be regarded as intimidatory or bullying. I find so because: · The affidavit evidence of all members of the proposed applicant group (disregarding the evidence of Ms Diver for reasons I have already explained), as well Christine Royan and Tracey Conlon (who is a member of the claim group) supports the proposition that appropriate processes were followed at the authorisation meeting. · The oral evidence at the hearing of Irene White, Elizabeth McAvoy and Christine Royan with respect to the decision-making processes undertaken at the authorisation meeting was consistent with the affidavit evidence filed in support of the notice of motion. · Christine Royan, who played a key role in the organisation and facilitation of the authorisation meeting, gave extensive affidavit and oral evidence detailing both the preparation for and processes at the authorisation meeting. It is clear from her evidence that the authorisation meeting was well-organised and well- facilitated. It is also clear that participants at the meeting, including Ms Barnes and Mr McEvoy, were given ample opportunity to advance their respective views. I consider Ms Royan a credible witness. · From the evidence detailing the processes at the authorisation meeting, I note in particular the following facts: - before any resolutions were passed, the resolutions were displayed on a large screen in front of the participants at the meeting; they were moved and seconded; those in attendance were invited to speak for or against the resolution; and they were then voted on by a show of hands; - before Resolution 5 was passed, members of the existing applicant group were given the opportunity to address the meeting on the progress of the claim and what they had done for the claim during their time as applicant. Both Ms Barnes and Mr McEvoy addressed the authorisation meeting at this time; - before Resolution 6 was passed, QSNTS staff left the authorisation meeting for approximately 45 minutes to allow the respective family groups to decide on nominees for the proposed applicant group. In my view, these procedural examples provide sound evidence that effective processes were followed which gave participants fair and reasonable opportunities to promote their views. Further, while I note claims by Ms Barnes and Mr McEvoy that members of QSNTS returned to the meeting room during the 45 minute period prior to the vote in relation to Resolution 6, and intervened in the deliberations of the members of the claim group, there is no evidence to support these claims. There is, however, ample evidence, particularly from Ms Royan and Ms White, as well as evidence of Ms Tracy Conlan who was in attendance at the authorisation meeting and is a member of the claim group, that the events as claimed by Ms Barnes and Mr McEvoy did not occur. I also do not accept Mr McEvoy's allegation that he was told to "shut up" by Ms Royan at the meeting, or otherwise denied a reasonable opportunity to express his views at the meeting. · The strong demeanour of both Ms Barnes and Mr McEvoy suggests that it would have been very difficult for either one of them to be intimidated or bullied while at the authorisation meeting. Indeed I note Elizabeth McAvoy's testimony regarding Owen McEvoy's participation at the authorisation meeting: Did you observe whether Owen McEvoy had a chance to put his point of view to the meeting?---He had more than his share, I think his chance. A couple of times he just he went for long periods of time and a couple of times Christine had to ask him for the mike. (TS p 48 ll 35-38); and · The "Summary of Outcomes for the Wangan and Jagalingou Authorisation Meeting" at CR 1 in the affidavit of Christine Royan, sworn 12 April 2010, indicates that the authorisation meeting took place over six hours and thirty-five minutes between 10:00 am and 4:35 pm. This significant period of time suggests that anyone who wished to speak had the opportunity to do so. 23 Accordingly I am not satisfied that individuals were intimidated or bullied at the authorisation meeting, or prevented from giving their views.

[10]

Did the attendance limit the capacity of the authorisation meeting to authorise the resolutions? 32 An analysis of the attendance at the authorisation meeting as recorded by Ms Royan reveals the following information: · 86 of 102 attendees identified as their apical ancestors persons listed in schedule A of the originating Form 1 Claimant Application to the substantive matter. Accordingly these attendees were entitled to vote; · 4 of 102 attendees identified as apical ancestors those who, by resolution at the authorisation meeting, were associated with the Wangan and Jagalingou people. Accordingly, these attendees were thereby entitled to vote; · 6 of 102 attendees identified themselves as QSNTS staff. These attendees were not entitled to vote; · 6 of 102 attendees identified themselves as visitors. These attendees were not entitled to vote. 33 In all, 90 of 102 attendees were entitled to vote and authorise the resolutions. 34 In CR 1 in the affidavit of Christine Royan, sworn 12 April 2010, the details of each resolution, including the person who moved and seconded the resolution, and how it was carried, were provided. I note that the numbers of those in favour of each resolution were not recorded, only the numbers of those opposing. However, given the large numbers of people voting and the very small numbers opposing each resolution (the greatest number in any one resolution being six), I do not consider that the failure to specifically count those voting in favour of each resolution detracts from the validity of the process. 35 On the evidence, it is clear to me that there were large numbers of persons who were members of the claim group in attendance at the authorisation meeting. There is no evidence before the Court that there was a significant presence of persons who were not recognised as members of the claim group. Everyone in attendance was required to identify themselves. At most, there were four persons attending who were not descended from the apical ancestors listed in Schedule A of the originating Form 1 Claimant Application, however those persons were in any event accepted by the claim group at the meeting as being associated with the Wangan and Jagalingou people. 36 Further, the overwhelming support for each resolution suggests that even if some of those in attendance at the authorisation meeting voted when they were not entitled to, it would not have affected the carriage of any individual resolution or, in fact, the capacity of the authorisation meeting to authorise the resolutions.

[11]

Does the fact that anthropological and genealogical reports relating to the substantive application were incomplete at the time of the meeting affect the authority of the claimant group to authorise the replacement of the applicant? 37 On 12 June 2009, Justice Dowsett made the following orders in relation to the substantive application in this matter: 1. On or before 16 November 2009 the Applicant file and serve particulars of the alleged pre-sovereignty society, including: (a) The nature and content of the laws and customs pursuant to which rights and interests in the claim area were held at the time of sovereignty; (b) The nature and content of the rights and interests held at the time of sovereignty pursuant to those laws and customs; and (c) The relationship of the claim group to that pre-sovereignty society. 2. On or before 16 November 2009 the Applicant provide to each respondent appearing today: (a) Such anthropological and other evidence presently in their possession which supports the claim; and (b) An outline of any further evidence received after today's date which supplements or explains such evidence or otherwise supports the claim. 38 In compliance with these orders, the QSNTS commissioned two reports - an anthropological report and a genealogical report. 39 At the hearing Mr Hardie for QSNTS said in relation to the anthropological report: What that report is designed to do is focus on what was the pre-sovereignty society that governed the claim area. It wasn't intended to deal with, in any comprehensive way, with the laws and customs of the claim group, the observants of those laws and customs by the contemporary society, or in fact the continuing observants. It was done so that the respondents could be given some idea of the sorts of where the applicant was going with the claim and some of the evidence that we hoped to produce at a later stage. (TS p 19 ll 34-40) 40 To date a preliminary anthropological report has been prepared. It is an extensive document, and copies have been provided to relevant parties including Ms Barnes and Mr McEvoy. I understand from submissions of Mr Hardie that further reports are in the process of preparation (TS p 19 ll 43-46). 41 The genealogical report, which has been provided to members of the claim group for their comment but not the respondent, is also, according to Mr Hardie, of a preliminary nature only (TS p 20 ll 4-11). 42 Mr McEvoy spoke at length about his dissatisfaction with the delay in compliance with his Honour's orders to produce the relevant reports, and his concerns regarding the replacement of the applicant in light of the uncertainty of the composition of the claim group generated by the unfinished reports. In my view Mr McEvoy's concerns are proper concerns. It is far from ideal that this matter proceed in the shadow of a claim group potentially subject to change pending the outcome of these reports. Nonetheless, the primary issue for determination at present is the validity of the authorisation process. With this in mind, I do not find that the status of the anthropological and genealogical reports invalidates the process whereby the applicant was replaced on 6 February 2010. 43 A key consideration in reaching this conclusion is that the applicant group appears to have an important role in providing instructions and information to QSNTS in relation to the completion of the reports. Accordingly, settlement of an appropriate applicant group which has been duly authorised by the claim group is an important and necessary step towards the satisfactory completion of these reports. Indeed, it would seem counter-intuitive to disallow the authorisation of the applicant group because of the incomplete reports when this group is integral to the satisfactory completion of the reports. 44 A further consideration is the submission of Mr Hardie, which I accept, that it is appropriate for there to be progress in respect of a native title claim during a period of preparation of anthropological and genealogical reports, and that this matter is likely to be more advanced than some (TS p 97 ll 22-26). The fluid nature of substantive claims such as this, particularly in light of the number of parties involved and the length of time over which they often occur (I note here that the originating application in this matter was filed on 27 May 2004), means that it is unlikely that such claims can proceed along strict procedural timelines. 45 Finally, it appears that Resolution 5 and Resolution 6 were carried by overwhelming majorities with only three out of ninety voting against each resolution. The desire of the claim group to replace the applicant is abundantly clear. It follows that even if substantial changes resulted in the composition of the claim group at the completion of the anthropological and genealogical reports, it seems unlikely that this would affect the overall desire of the claim group to authorise a replacement of the applicant.

[12]

Did Mr McEvoy second Resolution 2 at the authorisation meeting as deposed by Ms Christine Royan? 46 Resolution 2 proposed at the meeting of 6 February 2010 sought confirmation from the meeting that all persons present and entitled to attend the authorisation meeting in accordance with the public notice, were accepted as descendants of the pre-sovereignty society for the claim area. In turn, this entitled these people to fully participate in the proceedings as members of the claim group and importantly, to vote for or against the resolutions authorising the new applicant. 47 If Mr McEvoy did indeed second such a resolution, it would be inconsistent with the otherwise strong objections to the authorisation meeting he has maintained throughout these proceedings, and would contradict his objections to the alleged participation in the meeting of individuals he claimed were not entitled to participate. Such a finding would potentially cast doubt on Mr McEvoy's motivations and credibility. 48 In addressing the Court, Mr McEvoy denied vehemently that he seconded Resolution 2 at the authorisation meeting: HER HONOUR: All right, thank you. Now, Mr McEvoy, back to you. I also just make the observation that you seconded resolution to - - - MR MCEVOY: No, I didn't - I didn't second anything. I don't how that got - - - HER HONOUR: So that's - - - MR MCEVOY: I don't know how that got on there. HER HONOUR: All right, so let me just interrupt you for a second. So you are saying that that is an incorrect. MR MCEVOY: That's incorrect. HER HONOUR: Right. MR MCEVOY: I was objecting. I was objecting right from the very start. (TS p 24 ll 4-20) 49 However, evidence was presented to the court supporting a finding that Mr McEvoy did indeed second this resolution, in particular: · the affidavit evidence of Christine Royan, sworn 12 April 2010 (para 5); · the oral evidence of Christine Royan (TS p 61 ll 23-28); and · the oral evidence of Irene White (TS p 38 ll 35-47). 50 Both Ms Royan and Ms White were insistent that Mr McEvoy seconded Resolution 2. Both Ms Royan and Ms White gave evidence that they were surprised at the time that Mr McEvoy had done so, in light of his views concerning the meeting and the resolutions put to the meeting (TS p 65 ll 3-5, p 38 ll 42-43). I consider that they were both credible witnesses. I accept their evidence. 51 On the weight of the evidence, I consider that Mr McEvoy did indeed second Resolution 2. However, given the strong objections to the events at the authorisation meeting that Mr McEvoy has maintained throughout these proceedings, I attribute little weight to this finding of fact. In the context of other evidence regarding Mr McEvoy's participation at the authorisation meeting, it seems likely that he may have seconded this resolution without fully understanding its effect. In any event, I note that this resolution was carried by an overwhelming majority (with only six voting against it). It is likely that had Mr McEvoy not seconded this resolution, another participant at the authorisation meeting would have done so, thereby still allowing it to be carried.