Collins on behalf of the Wongkumara People v Harris on behalf of the Palpamudramudra Yandrawandra People

1. Pursuant to s 84C of the Native Title Act 1993 (Cth), s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) the proceeding be summarily dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 This proceeding involves a claim for native title identified in the claimant application as it is presently constituted as the Palpamudramudra Yandrawandra native title claim (the PY claim). The PY claim was filed on 9 February 2016. 2 The PY claim includes an area of land which overlaps another area of land the subject of a native title claim known as the Wongkumara native title claim. The Wongkumara native title claim was filed on 11 March 2008 and registered on 12 April 2008 (matter number QUD 52 of 2008). 3 Before the PY claim was filed, on 5 May 2014, the Wongkumara native title claim was listed for hearing in May 2016 (subsequently moved by consent to June 2016). The Wongkumara applicants have been working in consultation with the other parties towards either a consent determination and/or hearing to commence on 6 June 2016 since at least that time. As a result of the filing of the overlapping PY claim most of the June hearing dates have been vacated to enable the parties to the Wongkumara native title claim to deal with the overlapping PY claim. 4 On 23 February 2016 the Wongkumara applicants filed an interlocutory application seeking to be joined as a respondent to the PY claim and an order for summary dismissal. On 8 March 2016 I ordered that the Wongkumara applicants be joined as respondents to the PY claim. 5 On 24 March 2016 the Wongkumara applicants filed an amended interlocutory application which seeks an order that the PY claim be summarily dismissed under s 84C of the Native Title Act 1993 (Cth) (the Act), s 31A of the Federal Court of Australia Act 1976 (Cth), and/or r 26.01 of the Federal Court Rules 2011 (Cth). 6 Although the application for summary dismissal is brought on multiple grounds (including abuse of process on the grounds of unreasonable delay and prejudice to the Wongkumara applicants and grounds which depend on disputed questions of fact such as whether the PY applicants are a sub-group of a broader traditional society incapable of claiming native title for themselves alone), I have decided that the summary dismissal application must be sustained on the basis that the PY claim has not been authorised as required by the Act and that this lack of authority cannot be overcome by amendment of the PY claim (which is the subject of an interlocutory application by the PY applicants filed on 26 April 2016). Given this, notwithstanding the caution which must always attend the exercise of power to summarily dismiss a claim, I consider that the orders as sought by the Wongkumara applicants should be made. 7 My reasons for so concluding follow. 8 Section 61 of the Act provides that a person or persons may make a native title determination application if the person or persons is authorised by all the persons in the native title claim group. By s 251B(b) all the persons in a native title claim group authorise a person or persons to make such an application, relevantly in the present case (where there is said to be no traditional decision-making process), if: 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. 9 Section 61(4) is also relevant. It provides that: (4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation 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. 10 Section 84C is as follows: Strike-out application (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. Note: The main application may still be amended even after a strike-out application is filed. Court must consider strike-out application before other proceedings (2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1). (3) … Other strike-out applications unaffected (4) This section does not prevent the making of any other application to strike out the main application. 11 Section 84D(4) provides that the Court may "after balancing the need for due prosecution of the application and the interests of justice" hear and determine an application despite a defect in authorisation. 12 The only evidence of authorisation of the PY claim constitutes the minutes of a meeting held on 20 November 2014. Each of the PY applicants other than Tom Gallifant was present. Item 3 of the minutes records an apology from Tom Gallifant and that: The Flash and Murray families confirmed they had been notified but could not attend the meeting. 13 Item 4 of the minutes deals with authorisation. It records the following: 4. Authorisation Copies of the power point presentation, including the map of the claim area, were distributed to those present. The meeting confirmed that the boundaries marked on the map were acceptable and was a true and accurate illustration of the Palpamudramudra People's Country. Stephen Kenny advised that once this Palpamudramudra People's claim had been filed, the Wangkumara (sic) People would have to come and speak to them. The meeting resolved to authorise and certify the claim as follows: Motion #1: That the Palpamudramudra People present at this meeting held on 20th of November 2014 at the Box Factory in Adelaide are representatives of the following Apical Ancestors, being their biological descendants: The Parents of siblings Robert "Punbili" Parker aka Ninminna or Yellow Bob and Nellie "Manngidrikani" Parker aka Tim "Timpika" Guttie Parents of Geordie Ngarragildi Parents or sibling set Cora "Nanpicka" Parker, Jimmy Nappa Merrie and Nappa Merrie Peter And any descendant of the other Palpamudramudra People Moved: Leslie Harris Sr Second: Aaron Paterson Vote: All in favour Motion #2: That there is no Palpamudramudra traditional decision making process for the making of decisions in relation to these types of matters and as such this meeting agrees to and adopts the following decision making process: Each Palpamudramudra person present at the meeting over the age of 18 has a right to vote upon any resolution that is considered in relation to this claim; Voting will be by a show of hands; and Resolutions will be passed if they are agreed to by a majority of those Palpamudramudra People present and voting. Moved: Leslie Harris Jr Second: Leslie Scott Harris Vote: All in favour Motion #3: The Palpamudramudra People present at this meeting agree that a native title determination application be made over that part of the Palpamudramudra Country as per the above map and that the application is to be filed in the Federal Court of Australia as soon as is practicable. Moved: Leslie Harris Jr Second: Lloyd Roe Vote: All in favour Stephen Kenny noted that he would file the claim in the South Australian Registry, but expected that the Court would transfer the file to the Queensland Registry. In discussing motion 4, Stephen Kenny explained that the Authorised Applicants would also be subject to the decisions and directions of those who sat on the management committee. Motion #4: The Palpamudramudra People present at this meeting acknowledge that to make a claim for native title the meeting must authorise a person or persons to be the Named Applicant and for the Named Applicant to make a native title determination application on their behalf. That the following persons are authorised to make the application: Leslie Harris Jr; Leslie Harris Sr; Katherine Litherland; Tom Gallifant; and Francis Roe. The Palpamudramudra People present at this meeting agree that the scope of authority of the Named Applicant (as identified in the above paragraph) is as provided for in section 62A of the Native Title Act 1993 (Cth). The Named Applicant must follow the directions of the Directors of the Palpamudramudra Aboriginal Corporation or if none is set up then any Management Committee elected at this meeting in dealing with all matters that may arise in relation to the native title determination application to be made on behalf of the Palpamudramudra People. In the event of death, illness or incapacity (as defined in the Native Title Act 1993 (Cth)) of any one person who comprises the Named Applicant authorised at and by this meeting, the remaining persons who are authorised remain authorised as the Named Applicant. Moved: Lloyd Roe Second: Lee Tims Vote: All in favour Motion #4: This meeting instructs Camatta Lempens to prepare the Palpamudramudra Native Title application on behalf of the Palpamudramudra People and once finalised and agreed to by the Named Applicants to file the application in the Federal Court of Australia. That the name of the Native Title claim will be the Palpamudramudra Claim. This meeting notes that the people here present represent the major family groups of those who hold Native Title in the claim area, save and except for the Flash and Murray family groups. Moved: Leslie Harris Jr Second: Aaron Paterson Vote: All in favour Leslie Harris Jr advised the meeting that the Flash and Murray families were notified and confirmed to him over the telephone that they were unable to attend for financial reasons, but requested to be part of the claim. 5. Family Groups The meeting agreed to the following family groups: FAMILY GROUP FAMILY GROUP MEMBERS PRESENT Harris 1. Leslie Harris Sr; 2. Leslie Scott Harris; 3. Leslie Harris Jr; 4. Shirley Harris. Roe 1. Lloyd Roe; 2. Francis Roe. Paterson 1. Gloria Paterson; 2. Aaron Paterson Flash Murray Apology from the Flash and Murray families, and provision of confirmation that they support the claim. Guttie 1. Katherine Litherland