The Members of the Native Title Claim Group
23 The motion under s 66B in the Ngarluma and Yindjibarndi application is brought by:
"David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon, Les Hicks, Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert."
As appears from the terms of the application they are all, for the purposes of s 66B, members of the native title claim group as defined in s 253.
Want or Excess of Authority
24 It being established that there is a claimant application and that each of the persons moving under s 66B is a member of the native title claim group, s 66B requires it to be shown that the applicant being replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it, or has exceeded the authority given to him or her by the claim group.
25 Before January 1999 there were seven applicants named in the application. They were David Daniel, Daisy Moses, Kenny Jerrold, Woodley King, James Solomon, Bruce Monadee and Tim Kerr. Another earlier applicant had died and was removed from the application prior to January 1999. According to David Daniel's affidavit of 1 August 2002, the first group of applicants was chosen by the Ngarluma Yindjibarndi People at a community meeting in 1996. They were chosen by the community to bring the application on its behalf because they are people who have authority under the traditional law to speak for Ngarluma and Yindjibarndi country. He said they were chosen in the traditional way by the community as a whole. In early 1999 some additional applicants were chosen. They were Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, David Walker, Roger Barker, Judy Albert and Trevor Solomon. Mr Daniel said that many of these new applicants were chosen to help some of the older people understand the processes involved in native title and to represent a range of different Ngarluma and Yindjibarndi family groups. Their authorisation took place at a community meeting held in the bush.
26 The applicants instructed the Pilbara Native Title Service (PNTS) to be their lawyers at a community meeting held on 19 September 2001. David Daniel said in his affidavit that the meetings which have since been held by the PNTS are Ngarluma Yindjibarndi community meetings. Written notices of the meetings are sent several days before they take place. They are posted to people or hand delivered to their houses. News of the meetings are also spread by word of mouth. The meetings are usually held in Roebourne or Point Sampson.
27 The nature of the community meetings was described by Roger Barker, another applicant, in his affidavit sworn 21 August 2002. He said there is always discussion and consultation between members of the claim group both before and during the meeting. He said it is always a group decision. Young people help the old people by explaining "white fella" laws to them. This, he said, is the way of making decisions under their traditional laws and customs. It is not just up to individual applicants to go their own way and make a separate decision. They must do what the group decides. Community meetings, he said, are accepted by the Ngarluma and Yindjibarndi People as the proper way to make decisions. The claim group has always made its decisions in this way about the people it has chosen as applicants and also about major decisions on agreements concerning mining and other developments in the claim area. He said they have done it that way ever since the claim was lodged in 1996 and they still make decisions that way today.
28 According to David Daniel's affidavit, the Ngarluma and Yindjibarndi community has been having meetings since December 2001 about the State's proposal to acquire native title interests on the Burrup Peninsula and the Maitland Estates and in Karratha. Community meetings have been held approximately once every two weeks for that period to talk about the negotiations. These have been very hard for the community. They have had to make some very difficult decisions about whether to give up native title on part of their traditional country. They talked a lot about whether they were prepared to give up that land and whether the State was offering them enough. He said:
"We knew that the decision that we were making was not just about our lives, but about the lives of our children and their descendants. It is a great responsibility. After a great deal of deliberation the community resolved to enter into the agreement on 10 July 2002."
Mr Daniel said that at two meetings on 10 July, the Ngarluma Yindjibarndi community resolved to enter into the agreement and authorised the registered applicants to enter into it on their behalf. There were two meetings convened so that every Ngarluma and Yindjibarndi person would be able to attend a meeting, whether they worked or not. Notices were given out in the usual way. A total of over 100 people attended the two meetings. This, he said, is a good attendance for a community meeting. The resolution to enter into the agreement was unanimous and was made in accordance with their traditional laws and customs.
29 Mr Daniel said that every Ngarluma and Yindjibarndi registered applicant signed the agreement except for David Walker. Mr Walker told him that he wanted to obtain separate advice about the agreement. However, according to Mr Daniel, Mr Walker has had his own lawyers since at least 18 July 2002 when his lawyer visited Roebourne. He will not sign the agreement or give the rest of the applicants any indication of when he will sign the agreement. Mr Daniel said that Mr Walker has not attended any of the community meetings to negotiate the agreement or participated in any of the group decisions about whether to agree to it. He said there were some meetings held at night so that workers like David Walker would be able to come and he still did not attend. He did not attend either the day or the night meeting on 10 July 2002. In his affidavit Mr Daniel foreshadowed a community meeting on 12 August in Roebourne to discuss and make a decision about whether to remove David Walker as an applicant.
30 Frances Flanagan, a solicitor working with the Yamatji Barna Baba Maaja Aboriginal Corporation operating as the Pilbara Native Title Service, caused a notice of the meeting to be sent to the Ngarluma and Yindjibarndi community. It was sent to some ninety four addressees. The text of the notice was in the following terms:
"PILBARA NATIVE TITLE SERVICE
A SERVICE DIVISION OF THE YAMATJI BARNA BABA MAAJA ABORIGINAL CORPORATION
NATIVE TITLE REPRESENTATIVE BODY
NOTICE OF NGARLUMA AND YINDJIBARNDI COMMUNITY MEETING
Time: Monday, 12 August, 6pm
Venue: PNTS Office, Roebourne
AGENDA: Removal/Replacement of Applicants.
. At meetings on the 10 July 2002, the Ngarluma and Yindjibarndi community resolved to enter into an agreement with the State for the extinguishment of native title on the Burrup and Maitland Estates and some land in Karratha. In return, the agreement provided for benefits to go to the Ngarluma and Yindjibarndi people and other registered claimant groups. The benefits include money, freehold land on the Burrup, freehold blocks in Karratha, employment and training and education.
. At those meetings, the Ngarluma and Yindjibarndi community authorised the Registered Applicants to sign the agreement on their behalf.
. All of the Ngarluma Yindjibarndi Applicants, except Mr David Walker, have signed the Agreement.
. The agreement cannot go ahead without Mr Walker's signature.
. Since 13 July 2002, the State may withdraw the agreement at any time while Mr Walker does not sign the Agreement. If this occurs, all of the benefits to the Ngarluma Yindjibarndi people will be lost. It is likely that the State will then be able to acquire the land without the consent of the Ngarluma Yindjibarndi people.
. Mr Walker has obtained his own separate legal advice about the agreement. He has had a reasonable opportunity (since 11 July 2002) to read the agreement and to have it explained to him. He has not told anyone when he will make a decision to sign the agreement or not. He has not explained why he will not follow the community's resolution to sign the agreement.
. The meeting on 12 August 2002 will be to discuss and make decisions about the removal and replacement of Mr Walker as an Applicant to the claim.
Dinner will be provided at the meeting.
TRAVEL ASSISTANCE WILL BE PAID ACCORDING TO PNTS'S USUAL POLICIES. NO ADDITIONAL TRAVEL ALLOWANCE WILL BE PAID. PLEASE CONTACT SANDY MEDBURY AT THE PERTH OFFICE OF THE YLSC ON 08 9225 4644 IF YOU HAVE ANY QUERIES."
31 The meeting was chaired by Roger Barker. He was nominated as chairperson by the Ngarluma and Yindjibarndi Working Group and the applicants. According to Ms Flanagan the Ngarluma and Yindjibarndi Working Group is responsible for administrative and minor decision-making about matters associated with the claim. Mr Barker did not attend that meeting but was contacted after the meeting and undertook to be chairperson for the community meeting on the evening of 12 August.
32 The meeting was attended by some eighty Ngarluma and Yindjibarndi people. There were considerably more Yindjibarndi people than Ngarluma people. A video film of the meeting was taken and exhibited to the affidavit of Ms Flanagan. I have viewed the film. The meeting was opened by Mr Barker and there followed a presentation by a lawyer, Mr James Fitzgerald engaged by the PNTS.
33 Mr Fitzgerald's presentation and comments made during the meeting made clear that Mr Walker's refusal to sign the agreement with the State left the State in a position where it could withdraw from the agreement and withdraw its offer of benefits associated with the proposed acquisitions. Mr Fitzgerald conveyed the impression to the meeting that there was a significant and ongoing risk of that withdrawal which would increase with greater delay in finalising the agreement. He also presented to the meeting as options that if Mr Walker did not sign the agreement he could resign from the applicant group or, alternatively, the meeting could resolve to have him removed. He made it clear to the meeting that Mr Walker would nevertheless continue as a member of the claimant group. Mr Walker, who was accompanied by a lawyer, Mr Rumsley, at the meeting also spoke. He spoke only briefly and indicated that there were other Ngarluma people involved or affected by the proposed agreement with whom he had wanted to speak before committing to the agreement. His lawyer also addressed the meeting.
34 In the event, a number of resolutions, predrafted by the PNTS, were displayed using an overhead projector. These resolutions were in the following terms:
"Resolution 1 :
The members of the Native Title claim group resolve to no longer authorise the current applicant in the Native Title Determination Application WAG 6017 of 1996, namely:
David Daniel, (deceased person), (deceased person), Daisy Moses, Bruce Monadee, Woodley King, Kenny Jerrold, Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, David Walker, Roger Barker, Judy Albert, Trevor Solomon.
These persons (as a group) who comprise the applicant in WAG 6017 of 1996, are no longer authorised by the Ngarluma and Yindjibarndi claim group to make the Native Title Determination Application (WAG 6017 of 1996) or to deal with matters in relation to it.
This resolution is in accordance with the decision making process previously used by the claim group in relation to dealing with matters of this kind, including the original authorisation of these applicants and the process is consistent with the traditional laws and customs of the Ngarluma Yindjibarndi people in relation to decisions of this kind.
Resolution 2:
The members of the Native Title claim group resolve to remove David Walker and the names of the deceased people from the list of persons who comprise the applicant.
Resolution 3:
The members of the Native Title claim group resolve to authorise the following persons to be the applicant in WAG 6017 of 1996:
David Daniel, Daisy Moses, Bruce Monadee, Woodley King, Kenny Jerrold, Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, Roger Barker, Judy Albert, Trevor Solomon.
These persons have been authorised to be the applicant in WAG 6017 of 1996 in a process of decision making previously used to authorise the applicants in this matter and using a process adopted by the claim group for making decisions of this kind and in a way consistent with the traditional laws and customs of the Ngarluma Yindjibarndi people for making decisions of this kind.
Resolution 4:
The members of the Native Title Claim group resolve, approve and instruct the solicitors of the claim group to bring an application in the Federal Court to replace the current applicant with the people named in resolution 3."
The resolutions were passed on the voices without any expressed dissent. Mr Fitzgerald called for people to call "aye" if they supported the resolutions. He called for them to say "nay" if they were against the resolutions. A number of people called out "aye". Nobody called out "nay".
35 After this vote, the Yindjibarndi people in attendance at the meeting were requested to leave and the resolutions put to the remaining Ngarluma people only. A dinner had been provided in a building adjacent to the open area in which the meeting was conducted and the Yindjibarndi people left the immediate vicinity of the meeting to have their meal.
36 According to Ms Flanagan, there followed some discussion about involving Ngarluma people who resided outside Roebourne in the decision. Those present then expressed their support for the resolutions by voting with a show of hands. Nobody voted against the resolutions. There was discussion both before and after the resolution of the desirability of consulting other Ngarluma people not at the meeting. Mr David Daniel was to carry out that function. Mr Daniel, it may be noted, was a vocal supporter of the resolutions and of the execution of the agreement. The basis upon which the process appears to have been left at the end of the meeting, as expressed by Mr Fitzgerald to the meeting, was that if Ngarluma people not present at the meeting had a fundamental objection to the resolutions, then the matter would have to be reconsidered. The process for this was not identified or agreed upon.
37 The tone and content of what was said to those present at the meeting, particularly by Mr Fitzgerald, left them in no doubt that if Mr Walker did not sign the agreement or ceased to be an applicant, the State agreement could be in jeopardy. At one stage it was suggested to the meeting that they were "at the mercy of the State". There was a lot of pressure on those present to proceed urgently by way of passing the proposed resolutions. I do not intend thereby to suggest that this was improper pressure. The circumstances which had led to the convening of the meeting themselves gave rise to a need to deal with the matter with some expedition. I suspect, however, that the risk that the State would renege on its agreed arrangements in the short term was somewhat overstated.
38 In addition to the affidavits of Messrs Daniel and Barker and Ms Flanagan, there was a number of affidavits in common form sworn by the applicants moving for the removal of Mr Walker. They said in each case that Mr Barker's affidavit was correct. They each said that they attended the community meeting on 10 July when the community resolved to enter into the Burrup Agreement and authorised the applicants in the native title determination application to sign the agreement on behalf of the community. They deposed to their attendance at the meeting of 12 August 2002 and the terms of the resolutions passed at that meeting. Each affidavit ended with the paragraph:
"I confirm that community meetings are accepted by the Ngarluma and Yindjibarndi people as the proper way to make these decisions. We have done it this way ever since our claim was lodged back in 1996. We still make decisions this way today."
Affidavits in this category were sworn by Michelle Adams, Mary Walker, Bruce Monadee, Jill Churnside, Jimmy Horace, Linda Ryder, Kenny Jerrold, Les Hicks, Trevor Solomon, Daisy Moses, Judy Albert, Bruce Woodley. I should add that not all of these affidavits are identical. Some set out the texts of the resolutions. In some cases the deponent was present at the meeting of 10 July when the original resolutions were passed authorising execution of the agreement. All say they have read the affidavit of Roger Barker and say its contents are true and correct.
39 The conduct of community meetings in relation to the proposed compulsory acquisition is also the subject of an affidavit sworn by Alum Cheedy. He is an Aboriginal Liaison Officer employed by the Pilbara Native Title Service. In relation to community meetings held between December 2001 and July 2002 he has been involved with the distribution of meeting notices, transporting people to take them to meetings, attending at community meetings and recording the names of those in attendance. He said it was his practice to distribute notices to members of the community at least three days before a scheduled meeting. He would go to the houses of families on the Ngarluma and Yindjibarndi claim and deliver a copy of the relevant notice and inform them of the meeting. He would see the applicants and give them notices first. Then he would put a copy of the notice up on notice boards at various locations in the town. He would also drop notices off to other members of the community and tell them about the meeting as he saw them. He handed out notices to the community in this way for community meetings scheduled for 10 July and 12 August 2002. He said that as far as he was aware, David Walker only attended one community meeting between December 2001 and July 2002. That was on 18 April 2002. According to Mr Cheedy he has attended many community meetings where major decisions have been made about the claim or agreements concerning mining and other developments in the claim area. He confirmed that community meetings are accepted by the Ngarluma and Yindjibarndi as the proper way to make such decisions. He said they have done it that way ever since their claim was lodged back in 1996 and they continue to make decisions that way today.
40 There was also an affidavit sworn by Michael Vere Robinson, an anthropologist who has been involved with the research in relation to the claim. Mr Robinson is a Senior Research Fellow and Deputy Director of the Centre for Anthropological Research at the University of Western Australia. His involvement with Ngarluma and Yindjibarndi people dates back to 1982 when he was the Registrar of Aboriginal Sites. The WA Museum had been asked to investigate concerns of the Ngarluma and Yindjibarndi community that sites of significance to them were being desecrated by the construction of the Harding Dam. His professional contact with them at that time was for about a year. His involvement with them continued in 1984 when he was seconded to the Aboriginal Land Inquiry conducted by the Honourable Paul Seaman QC. He assisted the Ngarluma and Yindjibarndi people and other Aboriginal people in the Roebourne people to collate evidence for submission to that inquiry. Since about August 1995, Mr Robinson has been working for a significant amount of time, for several years almost full time, with the Ngarluma and Yindjibarndi people in relation to their native title claim, future acts and heritage surveys. His work has included collecting evidence for native title claims and conducting a number of heritage surveys with people in the claim area. He wrote an anthropological report dated 13 May 1999, supervised a collection of genealogies, compiled two supplementary reports and gave evidence at the hearing of the native title determination application. He has continued to be involved with the native title claim group since he gave his evidence and has attended meetings and advised their lawyers from time to time on anthropological matters to do with the claim. He said he had studied and developed an anthropological understanding of the traditional laws and customs of the Ngarluma and Yindjibarndi people and has studied the works of anthropologists and writers about them.
41 Mr Robinson said that although the Ngarluma and Yindjibarndi people are from separate language groups or tribes, they have been closely associated with each other over a considerable period of time particularly the last fifty years when they and their forebears took up residence in and around the Roebourne area. For the first one hundred years of non-indigenous settlement of the area most of them had been living on pastoral stations established on their traditional lands. The two groups have become closely associated through co-residence, inter-marriage and the sharing of traditions. That association is reflected in bringing their native title claim together. He said in his previous work with the groups it was apparent that they saw themselves as having common social and cultural interests.
42 Mr Robinson said membership of the group is reckoned in terms of descent. A person is a member of the group if he or she is descended from a Ngarluma or Yindjibarndi parent. These people hold traditional rights over the lands regarded as Ngarluma and Yindjibarndi country. In general terms people of Ngarluma descent hold rights in Ngarluma lands and people of Yindjibarndi descent hold rights in Yindjibarndi lands. However the two groups often meet together to consider and make decisions about matters affecting their lands. He knows, or has known, all the current named applicants for the claim group and confirm that they are all recognised as Ngarluma and Yindjibarndi people and are members of the claim group. Some of the current applicants are Ngarluma people and some are Yindjibarndi people.
43 Importantly, Mr Robinson said that in his experience with the people from the days before the native title claim was commenced he has observed that they often make decisions through meetings of members of both groups. These meetings were usually organised by incorporated groups in relation to matters to do with the Harding Dam, mining applications or the Roebourne area generally. He has attended many such meetings over the years. Since 1995 he has also attended many meetings arranged to organise the conduct of the native title claim. They have dealt with a wide range of issues including giving instructions to the lawyers progressing the application, making decisions about and arrangements for heritage surveys and agreements about developments affecting their land. He said these meetings are usually organised by the claimants' lawyers and either involve small groups such as a Heritage Committee or Working Group to consider particular issues or larger claimant meetings to discuss and make decisions about wider matters affecting the claim or agreements concerning land. He said that such meetings whether of a small group with special interests, or of a larger group representative of the claimants as a whole, are usually run according to a set agenda with motions being put and resolutions passed.
44 Mr Robinson said that meetings about the claim are usually attended in the main by those members of the Ngarluma and Yindjibarndi who live in and around Roebourne which is located in the traditional lands of the Ngarluma people. The majority of Ngarluma and Yindjibarndi people live in the Roebourne area. Some meetings have from time to time been attended by people who do not live in Roebourne or within the claim area particularly if there are certain issues raised which are of interest to those people or where issues affecting the whole group are concerned. In those circumstances, people have travelled to meetings from areas such as Port Hedland and Marble Bar or further. Mr Robinson believes it is accepted that Roebourne is the appropriate place for meetings to be held about matters relating to the claim area and that it is appropriate for decisions to be made by people who can attend meetings in the Roebourne area. The process of making decisions through meetings has been employed by the Ngarluma and Yindjibarndi claim group as an appropriate process for making decisions on behalf of the native title claim group.
45 Mr Robinson was present at the community meeting on the evening of 12 August 2002 at the PNTS office in Roebourne. He said the meeting was attended by about one hundred men, women and children who were members of the Ngarluma and Yindjibarndi claim group. He has seen the list of names of the attendees at the meeting. The list accords with his recollection of the people present and he was aware that the people on the list were Ngarluma or Yindjibarndi people. He observed that decisions were made by the Ngarluma and Yindjibarndi people at the meeting in accordance with decision-making processes which have been used by them in the past. He also said:
"In all the time that I have been involved in the claim I can confirm that it has been felt that the decisions of meetings should bind the members of the claim group and that the applicants in the native title claim are expected to act in accordance with the wishes of the group as decided at those meetings. Although traditional culture recognises and places value on individual autonomy, there is no traditional law and custom which allows any individual member of the Ngarluma and Yindjibarndi people to act on behalf or speak for them in a way contrary to their wishes. Under the traditional laws and customs of the Ngarluma and Yindjibarndi people individual members of the group are not authorised to put a position on behalf of the whole Ngarluma and Yindjibarndi people which is contrary to the decisions that were made by them."
46 In his affidavit in opposition to the motion, Mr Walker described himself as an elder, law man and custodian of traditional and customary sites of the Ngarluma people and as a member of the Ngarluma and Yindjibarndi native title claim who was appointed as an applicant on behalf of the Ngarluma. He said the Burrup contains the most important sites in Ngarluma culture, tradition and custom. He acknowledged that there have been meetings about the Burrup. He said he went to a few of these meetings but they were controlled by the Yamatji Land and Sea Council lawyers. He said that he and a lot of other claimants refused to go because they could not have a say, the Yamatji lawyers would not listen to or talk to them in a proper way about their native title in the Burrup. He claimed the negotiations were done by Yamatji and the State. He disputed that there were ongoing meetings to discuss and/or endorse the process of the negotiations. He said that when he decided not to sign, he also considered the future of the children and grandchildren and so on. The most important issue for him was that the peoples' land, sites and history, their stories, dreaming and songs should be kept in that place for the future. He said:
"I refused to sign this agreement because the Ngarluma elders must continue to manage and control our sites and our culture because it ties us to our land and it identifies us through our song, stories and dreamings and I did not understand the agreement and how it would affect this. As it is so important to the Ngarluma people I went to another lawyer to get advice."
47 Mr Walker said he had not seen a copy of the minutes of the meeting of 10 July 2002, or who was there and what happened. He said that as far as he was aware only a few people went to that meeting. He said he had requested a copy of the agreement and was told he could not have one. The only information he saw was the summary of the agreement from the Yamatji Land and Sea Council which did not include all the information necessary to allow an informed decision to be made. The summary also asserted that they had read the agreement. He said he had made inquiries with his extended family and with other members of the Ngarluma people in other communities who say they were never consulted about the agreement. He said that Helen Lawrence of the Yamatji Land and Sea Council told his lawyers they could not have a copy of the agreement. He was not able to get a copy until the evening of 17 July 2002 when he had arranged for Messrs McKie and Rumsley of McKie and Associates, Solicitors, to come to Roebourne to meet with him and Ngarluma and Yindjibarndi people. He said he arranged for a meeting on 18 July with Ngarluma and Yindjibarndi people at the Roebourne Hotel to talk about the agreement. At that meeting his lawyers, who had not had time to review the agreement, answered questions from claimants based on the Yamatji summary. David Daniel, Roger Barker and Trevor Solomon were present at that meeting and agreed it was a good idea to get independent advice from other lawyers on the agreement.
48 Based on the lawyers' comments he was concerned about the Yamatji summary of the agreement. He said he did not sign it because he was not involved in the negotiations, he was not given the opportunity to look at the documents and was not given any advice about it until he obtained advice from his own lawyer. He said that he has not been able to consider his position in relation to the agreement since getting advice because he is now dealing with the application to remove him from the claim. He agreed that he did not attend any negotiation meetings but said that as far as he was aware no Aboriginal people attended the negotiation meetings. They were conducted between Yamatji and the Government. He referred to advice from his lawyer that there was no guarantee that the Ngarluma and Yindjibarndi people would receive all the benefits outlined in the agreement. The government would control all the sites in the Burrup and rights and interests would be extinguished forever. He said:
"If I have to make decisions in relation to our rights and our sites then as an elder who has the responsibility for these things - then as an elder and lawman that is what I have to do."
He also asserted that, at the meeting held on 12 August 2002, five of the people present did not belong to the Ngarluma and Yindjibarndi claimant group, there were only fourteen Ngarluma people, fifty seven were Yindjibarndi and there were twelve Yamatji staff at the meeting. He said there were eighty nine adults and the rest were children.
49 Mr Walker referred to a number of Ngarluma and Yindjibarndi people he has spoken to since 12 August who have indicated they do not agree with the resolution to remove him. He said there are also Ngarluma and Yindjibarndi people in Port Hedland and Marble Bar who do not support the resolution to remove him. He has not yet had a chance to speak to them.
50 Mr Walker referred also to the affidavits of David Daniel, Trevor Solomon, Daisy Moses, Les Hicks, Jill Churnside and the Yindjibardni claimants. He said they had supported Roger Barker's affidavit so his response to Barker's affidavit applied to them also. He added that Daniel and Cheedy are part-time workers with Yamatji and therefore have a conflict and a pecuniary interest in the matter and should have been involved in the procedural matters because of a possibility of bias. He said that he is an elder of the Ngarluma people and that he and his family did not authorise the registered claimants to sign the State agreement or to apply to the Federal Court to remove him as an applicant.
51 The question whether David Walker is no longer authorised by the claim group within the meaning of s 66B(1)(a) depends upon whether there has been a withdrawal of his authority in accordance with the processes referred to in s 251B of the Native Title Act. In my opinion the evidence does not disclose a process of decision-making of the Ngarluma and Yindjibarndi people that could be described as a process of decision-making under the traditional laws and customs of the native title claim group. Indeed, although there has been a close association between the Ngarluma and Yindjibarndi people over the last fifty years or so, the evidence, particularly that of Mr Robinson, suggests that they have developed no form of common or joint decision-making applicable to native title determination applications which could be called decision-making under traditional law and custom. It may well be that within each group there are internal mechanisms of traditional law and custom which inform the process of joint decision-making in relation to matters connected with the native title determination application. But, in my opinion there is on the balance of probability no process of the kind contemplated in s 251B(a) of the Native Title Act. The evidence does support the inference that decisions of that kind are taken in accordance with a process of decision-making which has been adopted by the persons in the native title claim group and by inference agreed to by them over a period of time. That process involves the conduct of community meetings of the kind convened on 10 July 2002 and 12 August 2002 on matters of major concern in connection with the native title determination application.
52 The process of decision-making undertaken on 12 August 2002 may be criticised as pressured by reason of the matters to which the decisions related, the magnitude of their impact on the lands of the claim group, the magnitude of the benefits that might flow under the State agreement, the limited time frame which persons there present were advised was available for finalising the State agreement, the input of the lawyers and the formal character of the resolutions which were eventually passed at the meeting. These factors have to be seen however in the context of the much longer period of negotiation which led up to the meeting of 10 July 2002 at which the claim group authorised execution of the State agreement. They received advice from their lawyers on 12 August. That advice may have been emphatic. However, it is not to be supposed that members of the claim group which had been for so long engaged in processes associated with their native title determination application and with the negotiation of the State agreement were not capable of making an informed decision reflected in the resolutions which were eventually passed. In my opinion, the applicant, Mr David Walker, is as a result of the decisions taken at the meeting of 12 August 2002, no longer authorised by the claim group to make the application or to deal with matters arising in relation to it.
Whether the Proposed Applicants are Authorised by the Claim Group to Make the Application and to Deal with Matters Arising in Relation to it.
53 I accept that at the meeting of 12 August 2002, those of the claim group who now bring the s 66B application were authorised to make it and to deal with matters arising in relation to it and in relation to the native title determination application. It is true that in order to secure an early hearing date the solicitors for the applicants had filed their motion prior to the meeting of 12 August. The motion has subsequently been amended and at the time it came on for hearing had the authority of the native title claim group. I do not accept the objection made to it on the basis that it was not authorised at the time it was filed. On the other hand, I do not condone the procedure which was adopted. It should not be repeated.