Briggs, on behalf of the Gumbangirri People v Minister for Lands for the State of NSW

Factual Background 3 The factual background was not contentious. The following outline has been drawn primarily from the written submissions of NSWNTS. The primary application was lodged on 24 November 1997 by Mr Cecil Briggs. The application was said to be lodged on behalf of the "Gumilaroi People of the New England Tablelands", with no further descriptive information concerning the constitution of that group. On 22 December 1997, the description of the group was changed to the "Gumbangirri People of the New England Tablelands". That description was also without elaboration. 4 Substantial changes were made to the native title legislation in 1998 which introduced new criteria for applications for determination of native title under the Act. The legislation prior to these amendments will be referred to as "the old Act" (defined in item 31 of Sch 5 to the Native Title Amendment Act 1998 (Cth) ("the amending Act") as the Act in force immediately prior to the amending Act). As noted earlier, the present legislation in its current form is referred to as the new Act. 5 A further amendment to the primary application was made on 9 September 1999 for reasons that included "[clarifying] on whose behalf the application is brought". The second, third and fourth applicants were added, and the description of the native title claim group was "Members of the Dorodong Association Inc". The schedule to the amending application included a note that the Dorodong Association Inc ("the Association") is an association incorporated under the Associations Incorporation Act 1984 (NSW). As to eligibility for membership of the Association, the rules of the Association provided: 2. A person is qualified to be a member of the Association if, but only if, that person: a) is an adult Aboriginal person who is a Traditional Land Owner; b) is nominated and approved for membership as provided in these rules; and c) has paid the entrance fee and annual subscription payable under these rules (if applicable). … "Traditional Land Owner" means any person or that people (as the case may be) who according to traditional Gumbangirri law and custom is acknowledged and recognised as a or the traditional owner or owners of the land and waters the subject of Native Title Claim NC97/34. 6 The rules of the Association, in their entirety, are in evidence. They take the form of a standard set of rules with modifications made to them. A precondition for membership is that the person is nominated and approved for membership as provided by the rules and has paid the entrance fee and annual subscriptions payable under the rules: Rule 2(1). Nomination for membership must be made by an existing member: Rule 3(1). It is for the committee to determine whether to approve or reject the nomination: Rule 3(2). If the person is accepted as a member, then the person must pay an entrance fee (presently $1 under the standard rules (there is no evidence of some other amount having been determined by the committee)) and annual subscription (presently $2 under the standard rules (there is no evidence of some other amount having been determined by the committee)). Under Rule 11 the committee may expel a member if the committee is satisfied that the member has, for example, persistently and wilfully acted in a manner prejudicial to the interests of the Association. 7 In April 2001, the application in its amended form was considered and subsequently accepted by a delegate of the Native Title Registrar for registration under s 190A of the new Act. The evidence considered by the delegate included a statutory declaration sworn by Mr Briggs on 14 March 2001, which stated: 5. I am the public officer of the Dorodong Association Inc. I am a recognised elder of the Gumbayngirr People and am well aware of the persons who according to traditional law and custom are entitled to make claim as traditional owners to the claim area. 6. As at the date hereof, all the descendants of the Traditional Owners of the claim area at the time of British sovereignty known to me are members of Dorodong Association Inc except for children and teenagers. In respect of the children and teenagers their interests are all represented by the members because it is Gumbayngirr Traditional Law and Custom for the Elders to speak for those who are not adults. 8 The delegate gave written reasons for accepting the application in its amended form. In the reasons, the delegate said: I note the State of NSW's submissions provided on 24 September 1999 and on 7 June 2000 in relation to the problems inherent in describing a native title claim group by reference to the members of an Incorporated Association, however, I believe that the information supplied by Mr Briggs clarifies the situation in that he asserts, as public officer of the Association and as Gumbayngirr elder that, as far as he is aware, all those fitting the description for membership of the association, which amounts to those people who could claim native title rights to the area, are in fact members. … … I do not have any other information that indicates that this group does not include, or may not include, all the persons who hold native title in the area of the application and thus is a properly constituted claim group. 9 The delegate went on to consider the application by reference to subs 190B(3) of the new Act, which provides: The Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application; or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. 10 The delegate said: The application states that the native title claim group comprises all the members of the Dorodong Association. The Rules of the Dorodong Association and a copy of the certificate of Incorporation have been provided separately to the Tribunal. Rule 2 provides that membership of the association is 'open to an adult Aboriginal persons (sic) who is a Traditional Land Owner'. … The Rules further state that the members of the Association shall be those Aboriginal persons who qualify for membership and are approved by the Committee. A register of members shall be kept by the Public Officer. A copy of that register of members has not been provided with the application. However, in the statutory declaration of Mr Cecil Briggs (as Elder of the Gumbayngirr and public officer of the Association), dated 14 March 2001 it is stated that all adult traditional land owners (known by him) are members of the association. … It is possible for the membership to change over time, but this can be the case with a native title group however described. In this situation it is clear who are members of the claim group - they are the members of the association. If a person who meets the criteria for membership is not yet a member they are not part of the claim group until such time as they become a member of the association. 11 As noted earlier, this decision was made by reference to the statutory declaration of Mr Briggs made on 14 March 2001 in which he said that 'all descendants of the Traditional Owners of the claim area … are members of the Dorodong Association Inc except for children and the teenagers'. In later correspondence dated 24 June 2003, the solicitors acting for the applicants provided a list of individuals and said "the claimant group includes all the following members [listed individuals] of the Dorodong Association Inc". In a further letter of 27 June 2003, the applicants' solicitors conceded that the persons listed in the earlier letter did not constitute all the claimant group. The letter said, in part, that: We can confirm that the persons listed do not constitute all of the claimant group. In the first instance infant children of those listed would thereby be included. In addition there are other persons who would thereby be recognised by the persons listed and the applicants of the claim as members of the Native Title Claim Group but who have not yet made written application for membership of Dorodong Association Inc. 12 In an affidavit of Mr Briggs filed on 30 October 2003, he repeated that there are a number of eligible individuals who are considered to be members of the claimant group but who have not yet applied in writing for membership of the Association.

The Legislation 13 The following are the relevant legislative provisions. Section 84C of the new Act relevantly provides: (1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application. (2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1). … 14 Subsection 61(1) of the old Act identified the following persons who could make applications for a native title determination: (1) A person or persons claiming to hold the native title either alone or with others; or (2) A person who holds an interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area wholly within the jurisdictional limits of the State or Territory concerned. Subsections 61(2) and (3) of the old Act provided: (2) An application must be in the prescribed form and be given to the Registrar. It must also contain such information in relation to the matters sought to be determined as is prescribed. (3) An application made by a person or persons claiming to hold native title, or to be entitled to compensation, with others must describe or otherwise identify those others. In doing so, it is not necessary to name them or to say how many there are. 15 As noted earlier, substantial changes were made to the native title legislation in 1998 and new criteria were introduced for applications for determination of native title under the legislation. Item 21 of Sch 5 of the amending Act, provided: Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act. 16 Section 61 of the new Act sets out categories of applications that may be made under Div 1 of Pt 3 and the persons who may make the applications. Subsection 61(1) of the new Act identifies persons who may make an application for a determination of native title: (1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or (2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned. Subsection 61(4) of the Act provides: A native title determination application … that persons in a native title claim group … authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. As noted earlier, the primary application was initially made under the old Act. However, the application was amended on 9 September 1999, after the amending Act came into force.

The authorities 17 It has been held that if a native title determination application has been amended after the amending Act came into force, then compliance for the purposes of s 84C is to be assessed by reference to the new provisions. O'Loughlin J said in Quall v Risk [2001] FCA 378 at [65]: …whilst an original application that was filed before 30 September 1988 is to be considered against the provisions of the old s 61, an application that is amended after that date by changing the particularity of the claimants must comply with the provisions of the new s 61. This approach has been followed by Mansfield J in Dieri People v State of South Australia [2003] FCA 187 at [18]; 127 FCR 364 at 369, and Wilcox J in Bodney v Western Australia [2003] FCA 890 at [9]. However, this approach was not adopted without qualification by Emmett J in Wharton on behalf of the Kooma People v State of Queensland (supra), who concluded, at [25] to [27]: Section 84C is contained within Div 1A of Pt 4 of the New Act. According to s 79A, Pt 4 contains the rules for processing Federal Court applications, and making determinations, relating to native title. Specifically, s 80 provides that the provisions of Pt 4 apply in proceedings in relation to applications filed in the Federal Court that relate to native title. Thus, when s 84C(1) provides that, if an application does not comply with ss 61, 61A or 62, a party to the proceeding may, at any time, apply to strike out the application, the reference to 'an application' must be taken to be a reference to an application filed in the Federal Court that relates to native title. Accordingly, when item 21 of Sch 5 provides that s 84C applies whether 'the main application' was made before or after the commencement of s 84C, it refers to an application filed in the Court that relates to native title. The second sentence of item 21 is unambiguous in providing that, if that application was made before the commencement of the Amendment Act, the references in s 84C to s 61 or s 62 are references to s 61 or s 62 of the Old Act. An amendment to the main application does not give rise to a new application. The scheme of the Act recognises that applications may be amended. There is nothing to suggest that, when an application is amended, it should thereupon be treated as a new application so as to lose the protection afforded by item 21. (emphasis original) 18 Section 61 of the old Act as it operated in relation to the identity of the claimant group was discussed by Emmett J at [7]: The table in s 61(1) of the Old Act set out applications that could be made under Div 1 of Pt 3 of the Old Act to the Native Title Registrar ('the Registrar') and the persons who may make each of those applications. One kind of application set out in the table was a native title determination application. The persons who could make such an application included: 'A person or persons claiming to hold the native title either alone or with others'. (Emphasis added). Section 61(3) of the Old Act provided as follows: 'An application made by a person or persons claiming to hold native title … with others must describe or otherwise identify those others. In doing so, it is not necessary to name them or to say how many there are.' (Emphasis added). 19 The Full Court on appeal summarised his Honour's approach: Branfield v Wharton (supra) (at [7]): The primary judge gave two alternative reasons for his conclusion. First, he regarded the terms of cl 21 as unambiguous. If an application for a determination of native title was commenced before the Amending Act, the old s 61 had to be considered in an application under s 84C. If the application for a determination of native title was commenced after the Amending Act, the new s 61 had to be considered. The primary judge said at [27] that '[a]n amendment to the main application does not give rise to a new application'. Second, his Honour considered the argument raised by the Branfield applicants, in reliance on Quall v Risk [2001] FCA 378 ('Quall'), namely, that where an application for a determination of native title commenced before the Amending Act is amended by changing the composition of the claimants, the new s 61 applies to the consideration of a strike out application under s 84C. The primary judge found against the Branfield applicants on the facts. He found that, in this case, 'there has not been a change in substance in the group on whose behalf the Wharton application is brought'. 20 The Full Court then added (at [9] and following): On the appeal, the Branfield applicants wish to contend that the primary judge erred in applying the principle enunciated in Quall. In written submissions they contended that the description of the native title group changed from being "all Kooma People" otherwise undefined to being seven named "family groups and their descendants". In oral submissions, Mr Bain QC who appeared with Mr Katter for the Branfield applicants, supplemented this argument with a further argument based on the fact that, whilst the person to be registered as the native title claimant was entered on the original application as 'Wayne Morris Wharton on behalf of all Kooma people', the applicant was designated on the application as 'Kooma Aboriginal Corporation for land'. Again, the alteration from reference to the land corporation in the original application to the family groups and their descendants in the final amended application demonstrated, it was submitted, a change in the composition of the group. There was, the Branfield applicants argued, a change in the 'particularity of the claimants', within the language used in Quall. In Quall, it was found that there had been a change in the composition of the claimants (at [63]). Later in the reasons for judgment (at [65]), the change was referred to as a change in 'the particularity of the claimants'. The reference to the change in the particularity of the claimants was used to mean a change in the composition of the claimants. As to that latter concept, the primary judge said at [29]: '29 O'Loughlin J in Quall referred (at [63]) to an amendment involving a change in "the composition of the claimants". It is not entirely clear what his Honour meant by the reference to an amendment made "by changing the composition of the claimants". It may be that his Honour intended to refer to a change in the membership of the claimant group, as distinct from further particularisation of the claimant group. There may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the Old Act. If there were an amendment to that effect, the application as amended might fairly be characterised as a fresh application. It is not apparent to what extent Quall involved a change in substance as to the persons on whose behalf the claim was being made.' The Branfield applicants relied on several decisions which have followed Quall namely, Edward Landers v State of South Australia [2003] FCA 264 ('Landers'); Dieri People v State of South Australia [2003] FCA 187 ('Dieri') and Bodney v State of Western Australia [2003] FCA 890 ('Bodney'). Colbung v The State of Western Australia [2003] FCA 774 ('Colbung') approved Dieri on this aspect. Both respondents would argue on the appeal that the primary judge was correct in his conclusion on the facts of this case that the amendments did not involve a change in the composition of the claimants. In the alternative, the first respondent would argue that the evidence before the primary judge was not sufficient to discharge the onus on the Branfield applicants to show that there was a change in the composition of the claimants. The State of Queensland, the second respondent, would also wish to argue that, in any event, Quall was wrongly decided. It would say that the clear meaning of cl 21 was that an application under s 84C in respect of an application for a determination of native title commenced before the Amending Act was to be considered under the old s 61, whether or not there were amendments made to the application for a determination of native title after the commencement of the Amending Act. There was no occasion to consider the nature or extent of any amendments - the only matter relevant to the application of the old s 61 was that the original application was commenced before the commencement of the Amending Act. In effect, this argument supported the first basis on which the primary judge dismissed the strike out application. For the purposes of these applications for leave, we are prepared to assume, in favour of the Branfield applicants, the existence of the principle said to have been established in Quall. However, even if the principle is assumed, the Branfield applicants have not established any error made by the primary judge in the application of the principle. It was open to the primary judge to infer from the facts which he recorded that the amendments to the application did not involve a change to the composition of the claimants. Similarly, as was rightly conceded by Mr Bain in response to a question from the Court, there is nothing in the reference to the 'Kooma Aboriginal Corporation for land' in the original application which necessarily displaces that inference. Hence, on the basis assumed in their favour, the Branfield applicants are bound to fail on the appeal. It follows that there is no utility in granting leave to appeal. We will grant the extension of time sought by the applicant, but refuse leave to appeal. In those circumstances, no occasion arises for consideration of the more radical argument foreshadowed by the State of Queensland. Consideration of that argument should await a case in which its determination is required by the facts of the case. As already noted, we have assumed, for the purpose of considering leave to appeal, the correctness of the principle said to have been established in Quall. At the same time, we acknowledge that there is scope for questioning the correctness of that principle. Although it is not necessary to deal with the cases referred to by the Branfield applicants because of the approach we take, we observe in passing that in Landers, Dieri and Bodney there was no argument addressed to the Court on the effect of an amendment to the application for a determination of native title. In both Landers at [5] and [6] and Bodney at [9] the judgments record that the parties agreed that the approach in Quall should be taken. In Colbung, although Dieri was approved, the Quall reasoning was unnecessary for the determination of the application before the Court because the application for a determination of native title was found to comply with the new s 61 in any event. 21 Two things emerge from the judgment of the Full Court. First, their Honours left open the question of whether Quall was correctly decided though fairly plainly, from the concluding paragraph quoted above, they entertained doubts about whether it had been. Secondly, whether regard is had to s 61 in the old Act or the new Act, the party seeking relief under s 84C bears the burden of establishing non-compliance. 22 The importance of the proper identification of the native title claim group was discussed by Mansfield J in Edward Landers v State of South Australia [2003] FCA 264 at [35]; 128 FCR 495 at 504: …The proper identification of the native title claim group is the central or focal issue of a native title determination application. It is the native title claim group which provides authorisation under s 251B, and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made.

23 In Ford v Minister of Land & Water Conservation for the State of NSW [2000] FCA 1913, Lindgren J considered whether the identification requirements of s 61 of the old Act could be satisfied by reference to the membership of a body corporate. The composition of the Native Title group in that matter was described as: · three named individuals. · All current members of the Korewal, Elouera and Jerrungarugh Tribal Elders Corporation ("the body corporate"). · All future members of the body corporate. In relation to the description of the group, Lindgren J said at [23]: …if the meaning of the affidavit is that the three persons named in subpars 3.1(a), (b) and (c) together with all the current members of the Korewal, Elouera and Jerrungarugh Tribal Elders Corporation together with all future members of that corporation are the claimants and are to be substituted for "The Elouera People" (it is not clear to me whether the deponent intends that they be substituted or added), the identification of the other claimants is still inadequate. One need only note by way of illustration the reference to "all future members of the body corporate" to appreciate the difficulty.

Issues raised by strike out application 24 The notice of motion originally filed by NSWNTS simply sought an order that the primary application be struck out pursuant to s 84C. Its submissions initially proceeded on the assumption that s 84C raised for consideration in this matter compliance with s 61 of the new Act. On that assumption, the NSWNTS submitted that the evidence presently before the Court revealed a different factual situation to the one considered by the delegate in April 2001. Specifically, it has been conceded that the list of members of the Association does not constitute all the claimant group. It was further submitted that the practice of defining a native title claim group by reference to the membership of a company or association may never meet the necessary requirements of s 61(1) of the new Act. That is because there is a potential for disconformity between the identity of the members of the Association at any particular time, and the group of people who hold native title in the application area according to the traditional laws and customs acknowledged and observed. NSWNTS submitted that the facts in this case were analogous to an issue which arose in Ford v Minister of Land & Water Conservation for the State of NSW (supra). In submissions in reply filed before the hearing, NSWNTS identified what were effectively two grounds raised concerning the application. The first was that there was no properly constituted native title claim group and the second was that there had not been proper authorisation of the proceedings. In submissions filed after the judgment of Emmett J and the further submissions filed after the Full Court decision of Branfield v Wharton (supra), NSWNTS canvassed a number of combinations and permutations of analysis (which depended in part in whether s 61 of the old Act or the new Act applied) which is unnecessary to repeat. 25 The applicants challenged the standing of NSWNTS to make the strike out application on the basis that the making of such an application was not a matter comprehended as a function of a representative body by the new Act. The applicants submitted that even if I concluded the application did not comply with the legislation, the application should not be struck out. The applicants argue that s 84C does not mandate that result, and that the general requirements for summary dismissal are applicable. The applicants referred to the judgment of Whitlam J in Lawson v Minister for Land and Water Conservation [2002] FCA 488. That matter involved a strike out application brought by NSWNTS alleging failure to comply with s 61 and s 62 of the old Act. Whitlam J said at [7]: I am prepared to assume for the sake of argument that the applications did fail to comply with statutory requirements and that the power under s 84C of the Act is enlivened. Nonetheless, I am firmly of the view that it is not appropriate to strike out the applications. An order has been made in each matter for the separate decision of carefully formulated questions under O 29 of the Federal Court Rules. The applicants also relied on the general proposition that the Court must be satisfied that a claim has no chance of success before striking it out, citing authority ranging from Burnton v Shire of Bairnside (1908) 7 CLR 76 at 92 to Moran v Minister for Land and Water Conservation [1999] FCA 1637. An alternative to striking out the application, it was submitted, is to order or allow the application to be amended if it is defective.

Consideration 26 The fact that the application is registered does not preclude the Court finding that the application has not been made on behalf of a properly constituted native title claim group. The actions of a delegate do not impact upon the role of the Court: see Edward Landers v State of South Australia (supra) at [28]; 502-503, and Phillips v State of Western Australia [2000] FCA 1274. 27 Section 84C authorises a party to the proceedings to make an application under the section. NSWNTS was joined as a party by an order made on 19 March 2002. The applicants consented to its joinder. It would, in my opinion, take clear words in Pt 11, or a clear implication arising from that Part, to read down what is otherwise unambiguous language in s 84C. I am not satisfied that the section should be read down so as to deny a particular party (which is a representative body or body performing the functions of a representative body) standing to make application under the section. 28 In my opinion, Emmett J's analysis in Wharton on behalf of the Kooma People v State of Queensland, (supra) is correct. Section 84C directs attention to s 61 of the old Act in relation to an application made under that Act unless the application has been amended and the application as amended can fairly be characterised as a fresh application. Thus, the starting point is to determine whether the amendment to the application made in 1999 in this matter is as described by his Honour in [29] of his judgment (and set out above at [20] in the extract from the judgment of the Full Court). I consider it can be fairly characterised as a fresh application. Whatever may have been the outer limits of the claimant group described in the original application, the 1999 amendment transmogrified that group into an incorporated association. It is an admitted fact that the membership of the Association does not correspond with members of the claimant group. It is true that the rules of the Association contemplate, as a condition of membership, that the member is a traditional land owner as defined. However, membership is conditioned by nomination, approval by the executive and payment of fees. In addition, a member can be expelled from membership. 29 As is generally the case with any incorporated association (or for that matter unincorporated association), the existing members from time to time determine, according to the rules, who else will be admitted to membership or which existing members might be removed from membership. Such an association does not provide a stable identification of a group on whose behalf a native title determination application is being made. The only common characteristic defining and limiting the group should be that the members hold native title (under s 61 of the old Act) or hold, according to their traditional laws and customs, the common or group rights and interests comprising the particular native title claimed (under s 61 of the new Act). The other limits or conditions imposed by the rules of the Association to become and remain a member are, in my opinion, alien to the notion of a group with a sole defining characteristic of sharing, having or enjoying native title. 30 Accordingly, the amendment made in 1999 created a group different in substance to that named in the original application. Section 61 of the new Act must be satisfied. For the reasons given in the preceding paragraph, the application does not describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. Persons who are members of that group may be members of the Association. However, it does not follow, either presently as a matter of fact or necessarily so in the future having regard to the rules, that the members of the Association exhaust (and will always correspond to) the class which is the native title group. If I am wrong and the reference point should be s 61 of the old Act, then for the same reasons the amended application does not describe or otherwise identify, in addition to the applicants, the persons who hold native title. 31 Even accepting that these conclusions do not mandate an order striking out the application under s 84C, such an order should, in my opinion, be made. Since the application was filed in 1997, the matter has not progressed in any material way. Moreover, it is problematic how the application could be further amended to remove the vice I have identified in the way the group is presently described. An issue would well arise about whether or not it would be a matter for only the present members of the Association to resolve to authorise the applicants to apply to amend the application. Another issue could well arise about whether it would be open to the members of the native title group who are not presently members of the Association to participate in decisions about the terms of the amendment and if so, on what basis. The better course, in my opinion, is to strike out the application and if the members of the group wish to bring a fresh application, that is a matter for them. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 18 August 2004 Craddock Murray Neumann Solicitor for the Applicant:

Solicitor for the First respondent: Crown Solicitor's Office

Counsel for the Second Respondent: S Phillips

Solicitor for the Second Respondent: NSW Native Title Services Ltd

Solicitor for the NSW Farmers Association: Bruce & Stewart Commercial Practice Pty Ltd

Date of Hearing: 10 November 2003

Date of Judgment: 18 August 2004