Fair notice was given that the authorisation of a new Bigambul Applicant was an item of business at the Toowoomba meetings
57 In its final amended form, the order sought in relation to this aspect of the present applications was that:
The applicant (Russell Doctor, Elaine Georgetown, Veronica Jarrett, Rhonda Sandow, Roger Knox, and Cyril Logan and Gary Woodbridge) be replaced by the following persons: Russell Doctor, Elaine Georgetown, Rhonda Sandow, and Cyril Logan.
58 A comparison of the membership of the existing Bigambul Applicant with the proposed Bigambul Applicant shows that three people were to be excluded. They were: Veronica Jarrett, Gary Woodbridge and Roger Knox.
59 The events leading to this particular application are already detailed above. However, it is convenient to recap and expand on some aspects of those events, as follows.
60 First, the particular part of the notice that is pertinent for present purposes is that appearing under the map of the Bigambul claim area where it is stated: "A meeting of any amended claim group will follow to direct the relevant Applicants to proceed to a Determination of Native Title for the amended claim" (see at [23] above).
61 Secondly, the resolution concerned (Resolution 4) was passed at the second of the Toowoomba meetings, that is, at the meeting of the newly constituted Bigambul claim group as determined by the first meeting. Thus, the resolution was in the following form (see at [32] above):
"This meeting endorses the decision of the earlier meeting to amend the claim group description and the decisions of this meeting relating to the claim boundary. Those Applicants who remain members of the claim group as amended by resolution passed at the meeting held earlier this day (Resolution 2) are authorised and directed to do all such things as are necessary to obtain a Native Title Determination consistent with those decisions."
62 QSNTS opposed this order being made. It contended that the notice for the Toowoomba meetings was defective, insofar as it related to the proposal to replace the existing Bigambul Applicant with a new Applicant to pursue the Bigambul application. It submitted the notice did not fairly convey the fact that this was one of the items of business to be considered at the Toowoomba meetings. This arose, so QSNTS submitted, from the following features of the notice. First, it claimed the notice only referred to one meeting of the Bigambul claim group, not two. Next, it claimed the notice identified four numbered purposes of the meeting, none of which included the proposal to replace the existing Bigambul Applicant. Further, insofar as the notice may have contained any mention that the meetings may be asked to replace the Bigambul Applicant, that appeared near the end of the notice and, since it was so long and complex, it was likely to have been missed. Further still, it submitted that the use of the word "direct", rather than the word "authorise" which is used in the NTA, did not accurately convey that one of the items of business at the meetings was to authorise a new applicant for the Bigambul application. Finally, it submitted that the notice did not clearly identify who was to be removed from the membership of the existing Bigambul Applicant when it stated that "the relevant Applicants" were to be directed to proceed with the Bigambul application.
63 I do not consider any of these submissions can be accepted. First, it was clear from the statement in the fourth last paragraph of the notice (see at [23] above) - "[a] meeting of any amended claim group will follow" - that there were to be two meetings - one to consider the proposed amendments to the description of the Bigambul claim group and, if they were adopted, a meeting of the amended claim group to follow. Secondly, while the paragraph of the notice in question was not numbered, it did appear at the end of the section headed "Purposes of Meeting are". Further, by stating that the purpose of the second meeting was "to direct" the "relevant Applicants" to proceed with the Bigambul application, the notice there identified the particular item of business in similar terms to the four numbered paragraphs that immediately preceded it, that is: "To hear" (paragraph 1), "to determine" (paragraph 2), "to consider" (paragraph 3) and "To decide" (paragraph 4). Since it was in the same section of the notice as the numbered items of business and used similar terminology to those items, I consider a person reading the notice would have concluded it described one of the items of business that was to be considered at the Toowoomba meetings.
64 Thirdly, despite the fact that the notification of the intention to have a second meeting appeared at the end of what was a complex and lengthy notice, I consider an interested member of the Bigambul claim group would have been likely to read the whole of the notice and when they did they would have received sufficient notice of the fact that the authorisation of a new Applicant was to be an item of business to be considered at the Toowoomba meetings.
65 Fourthly, while it may have been preferable to use the statutory terminology of "authorise", I consider the word "direct" conveyed a similar concept, namely, that a new Bigambul Applicant was to be responsible for pursuing the Bigambul application on behalf of the Bigambul claim group. In this respect, it is also significant that the banner heading to the notice stated: "AUTHORISATION MEETING FOR BIGAMBUL NATIVE TITLE CLAIM GROUP".
66 Finally, in all the circumstances of this matter, I do not consider the use of the expression "relevant Applicants" was ambiguous. In the first place, until such time as the existing Bigambul claim group had decided at the first meeting how the claim group was to be constituted, it would not be known who amongst the membership of the existing Bigambul Applicant would be eligible to continue as members of the new Bigambul Applicant. This contingency followed, in part, from the two step process described above and the requirements of s 61(1) of the NTA that the persons who are authorised by a native title claim group to be the Applicant must "also [be] included in the native title claim group". To have nominated in advance of those decisions which members of the existing Bigambul Applicant were to be excluded as members would have therefore pre-empted the earlier decisions. Rather than offend the autonomy of that decision-making process, I consider it was appropriate, in the circumstances, to use the more neutral and open-ended expression "relevant Applicants".
67 Despite the use of this more anodyne expression, I am satisfied that the two persons who were most likely to be directly affected by the possible outcome described above - Mr Roger Knox and Ms Veronica Jarrett - were well aware of it and, indeed, accepted it. In relation to Mr Knox, the State of Queensland produced affidavit evidence at the hearing of this application to show that, at an early stage of this proceeding, Mr Knox had identified himself as a descendant of Sally Nerang. More significantly, in one of his affidavits, Mr Hardie confirmed that this was so and he said that he told the Toowoomba meetings that he had discussed this issue with Mr Knox and he: "was in favour of making the change to the claim group description even if this meant that he couldn't claim to be Bigambul through Sally [Nerang]".
68 The same applied to Ms Jarrett. In one of his affidavits, Mr Hardie deposed to the fact that he had a discussion with Ms Jarrett prior to the Toowoomba meetings during which she told him that she was a descendant of Sally Nerang and that she had signed an attendance record to that effect at a previous meeting of the Bigambul claim group. Mr Hardie said that he had advised Ms Jarrett that the exclusion of the descendants of Sally Nerang from the Bigambul claim group would mean she would no longer be eligible to serve as a member of the Applicant for the Bigambul application. He said she told him that she accepted this consequence. Mr Hardie also said that he informed the Toowoomba meetings of the gist of his discussions with Ms Jarrett.
69 I am also satisfied that most, if not all, of the members of the existing Bigambul claim group were likely to have been well aware, from the history of this issue within the claim group, as to what the expression "relevant Applicants" was meant to convey. That history is outlined at [1]-[3] above. The two step process which I have mentioned above (at [45]-[49]) was a crucial part of that history because it was the primary reason why an earlier authorisation meeting of the Bigambul claim group had failed: see Bigambul No 2 at [56]-[62]. For that reason, I consider the implications of this two step process were likely to be well known within the Bigambul claim group. One of those implications was that the reconstitution of a claim group may result in the ineligibility of some members of the existing claim group to serve as a member of the applicant for the reconstituted claim group.
70 Finally on this issue, it is significant, in my view, that there is no evidence before me that any member of the Bigambul claim group was unaware that this item of business was to be considered at the Toowoomba meetings, nor is there any evidence that any member of the claim group was misled by this aspect of the notice for those meetings. To the contrary, as I have already recorded above (at [54]), those meetings were well attended by comparison to the earlier meetings of the Bigambul claim group that had been called to consider similar aspects of this very issue.
71 Before leaving this issue, I should briefly explain why Mr Woodbridge was excluded as a member of the Bigambul Applicant. He is deceased. Mr Hardie deposed to this fact in one of his affidavits by reference to an affidavit made by Mr Woodridge's brother, Mr Leslie Woodbridge, where he described the events at his brother's funeral.
72 Finally, while QSNTS's opposition to the making of this order only related to the question whether fair notice was given that this was to be an item of business at the Toowoomba meetings, it is apt to record how this item was dealt with at those meetings. The particular resolution concerned was Resolution 4 which was passed at the second of the Toowoomba meetings (see at [32] above). As recorded above (at [33]), that resolution was carried by 87 votes to 47 votes.
73 For these reasons, I consider that fair notice was given to the members of the Bigambul claim group that one of the items of business to be considered at the Toowoomba meetings was the authorisation of a new Bigambul Applicant to pursue the amended Bigambul application on behalf of whatever reconstituted Bigambul claim group emerged from the earlier decisions to be made at those meetings. I am therefore satisfied that the reconstituted Bigambul claim group has properly authorised the new Bigambul Applicant to pursue the amended Bigambul application on their behalf. Because I have reached this conclusion, it is unnecessary to consider whether s 84D of the NTA could be applied to avoid the expense and inconvenience of convening and conducting a further meeting of the Bigambul claim group. I mention this matter because it was the subject of detailed submissions at the hearing of this application.