Fischer on behalf of the Gudjala People v State Minister for the State of... [2025] FCA 1374 | Case summary

(d) Gordon Santo.

Fischer on behalf of the Gudjala People v State Minister for the State of... [2025] FCA 1374 | Case summary | Zoe

[14]

(a)[sic] If a member of the applicant's authorised alternative replacement becomes deceased or is unable or unwilling to continue in the capacity as an applicant, the surviving persons making up the applicant are authorised as the applicant.

(b) The members of the applicant are to act at all times in the interests of the Gudjala People.

(c) The members of the applicant are to act on the advice of legal representatives.

(d) The applicant can make all decisions by majority.

(e) The applicant is not to engage another solicitor without a resolution being passed at an authorisation meeting.

The Authorisation Meeting was called to authorise a replacement applicant because the current applicant exceeded its authority by its unauthorised appointment of a new legal representative for the Applicant instead of the in-house solicitor of the North Queensland Land Council Native Title Representative Body Aboriginal Corporation (NQLC) who the Gudjala People had decided should be the solicitor for the Application.

Those members of the Gudjala People who attended the Authorisation Meeting resolved that there is no process of decision-making under our traditional laws and customs for authorising a replacement applicant to bring and maintain a native title determination application under s.61 of the NTA and therefore the meeting resolved to adopt an agreed process for this purpose.

The decision-making process agreed and adopted by the Gudjala People at the Authorisation Meeting by its first resolution is:

(a) only Gudjala People who have attained the age of 18 years may vote on a resolution considered at this meeting;

(b) any resolutions made at this meeting will be made by way of vote to be decided by way of a show of hands;

(c) resolutions receiving majority support will be considered as being affirmatively made;

(d) persons who abstain from voting will not be counted as either for or against a resolution;

(e) before a resolution is voted upon, it will be read out to the meeting and moved and seconded; and

(f) if requested, the family groups descended from the apical ancestors will be given an opportunity to meet separately to discuss one or more resolutions.

By resolution 6 of the Authorisation Meeting, the Gudjala People resolved to replace the current applicant.

By resolution 7 of the Authorisation Meeting, Tania Ault, Gordon Santo, Tegan Kerr and I were authorised by the Gudjala People to:

(a) make the Application and to deal with matters arising in relation to it; and

(b) make an application under s 66B of the NT A to replace the current Applicant of the Application.

To the best of my knowledge and belief, based on my own knowledge and advice given by Ms Cheryl Thomson, Senior Legal Officer at the NQLC:

(a) the native title rights and interests claimed by the Gudjala People in the Application have not been extinguished in relation to any part of the area covered by the Application; and

(b) none of the area covered by the Application is also covered by an 'approved determination of native title' as that term is defined in the NTA.

By resolutions 9 and 10 of the Authorisation Meeting, the Gudjala People resolved to impose the following conditions on the authority of the replacement applicant relating to the conduct of the Application and matters arising in relation to it:

(a) The applicant is to act at all times in the best interests of the Gudjala People as a whole;

(b) The applicant is to act on the advice of its legal representative;

(c) All persons comprising the applicant must participate, either in person or electronically, in decisions made by it;

(d) The applicant should attempt to make decisions by consensus but may make decisions by a majority vote;

(e) The applicant must engage an in-house solicitor of the NQLC as the legal representative for the Applicant for the conduct and maintenance of the Application and matters arising in relation to it, including the applicant's dealings with all future act matters such as mining, exploration and land development affecting the land and waters covered by the Application; and

(f) The applicant will not:

(i) engage a solicitor other than an in-house solicitor of NQLC; or

(ii) discontinue the Application,

[16]

In his affidavit filed 11 July 2024 Mr Anderson expanded on his earlier evidence in respect of the 20 April 2024 meeting, and relevantly deposed:
1. At the 20 April 2024 meeting, when it came to choosing who the members of the replacement applicant would be, the Gudjala family members at the meeting who are descended from our ancestors got together to decide who we would put forward to be voted on by the meeting. This is our way for coming up with candidates to be voted on by the meeting. It allows senior people, like myself, to talk to other family members and to sort out any differences about who our family should put forward.
2. My family asked me to be a member of the replacement applicant and I agreed. When everyone came back together to continue the meeting, I was put forward to be a member of the replacement applicant. Tania Ault, Tegan Kerr and Gordon Santo were put forward by their families. Our names were then voted on by the Gudjala People at the meeting.
3. There is no requirement under Gudjala law and custom that all of the Gudjala families must have a representative who is part of the applicant of a native title claim.
4. I saw no disrespect towards the members of the current applicant at the 20 April 2024 meeting. At the start of the meeting Nicole Huxley explained what had been going on with our native title claim and why she, Tegan Kerr and Gordon Santo called the meeting. William Santo was angry with what Nicole Huxley said about him resigning. Lawrence Kerr wanted to argue that the meeting wasn't properly called, but one of the lawyers at the back of the meeting said the meeting was okay to go ahead. Gloria Santo wanted to talk about Ngrragoonda business. She and William Santo said the meeting needed to be called by the board of Ngrragoonda. Patricia Dallachy wanted Nicole Huxley to stop interfering.
5. I agreed with the majority of people at the meeting that Gudjala people should have some time to discuss our concerns about our native title claim without the current applicant, the staff from the North Queensland Land Council and the lawyers. After that they would be invited back into the meeting to speak with us. When the meeting voted in favour of doing it this way, William Santo was angry and left with his lawyer. The meeting went ahead in the way that the meeting had voted for it to go ahead.
6. After we had sorted things out amongst ourselves, we found out that only Patricia Dallachy had waited outside. She came back into the meeting, but would not answer any questions. After that, we asked the staff from the North Queensland Land Council and the lawyers to come back into the meeting so we could get on with it.
In his affidavit filed 3 February 2025 Mr Anderson gave evidence concerning his knowledge of Gudjala country, and the authorisation meetings held on 18 March 2023, 25 November 2023 and 20 April 2024. In respect of the authorisation meeting held on 18 March 2023, Mr Anderson relevantly deposed:
1. When it was time at the meeting to nominate a family representative to be one of the members of the applicant, we broke into our family groups to discuss who we would nominate as our applicant and reserve applicant. Dicky Davidson, Aunty Sadie McLean (Aunty Sadie), Patricia Dallachy and I met to decide who would nominate [sic] for our family. My family asked me if I would be the applicant to represent Topsy Hann and Patricia Dallachy was selected to be the reserve applicant if anything were to happen which would stop me from carrying out my duty.
2. Aunty Sadie was at the family meeting that day as she is descended from Topsy Hann. She is one of our oldest people. Aunty Sadie didn't say much during this meeting, and she agreed with Richard (Dicky) Davidson that I should be the applicant for our family. I was chosen because I was involved in the other two determinations.
3. I haven't had much to do with Aunty Sadie in the last few years. When I see her at Gudjala meetings I always go up and speak with her first and give her a hug. After one of the Gudjala determinations she said to me, "you keep on going boy". I took that to mean keep the fight going for our Gudjala country.
4. I refer to paragraph 21 of Patricia Dallachy's affidavit sworn on 29 November 2024 and say that I do not remember Aunty Sadie ever saying that Patricia Dallachy should be the applicant after it had been decided at our family meeting on 18 March 2023 that I was the person our family nominated to be the applicant.
5. We reconvened the meeting and when it came time to say who we nominated to represent Topsy Hann, Patricia Dallachy jumped up and announced to the meeting that she was going to represent Topsy Hann. This went against what had been decided at our family meeting. I let it go as my main concern was to get our claim authorised and into court; not whether the applicant was Patricia or me. I was happy to be the reserve applicant if anything happened to Patricia Dallachy.
In respect of the 25 November 2023 Authorisation Meeting, Mr Anderson deposed that that meeting was called "because the applicant wasn't doing what we authorised it to do and we had to decide what to do about it." In respect of Ms Patricia Dallachy representing his family, Mr Anderson deposed:
1. My family met at the covered area at the front of the PCYC main entrance. Nicole and Jennifer Huxley, Dicky Davidson, Lenise Forman and Aunty Sadie were there. After some discussion we decided to give Patricia Dallachy another go if she did what she is told by our family group. She agreed to be our applicant member and to work with NQLC. She said she would keep in contact with our family group and let us know what was going on with the Gudjala Claim.
2. My family then went inside and voted to continue with the NQLC as our legal representative. We also supported the decision not to proceed with the resolution to replace the applicant.
In respect of the 20 April 2024 Authorisation Meeting, Mr Anderson deposed:

[27]

In her affidavit filed 3 February 2025 Ms Douglas deposed that she was a solicitor employed by NQLC, and was a member of NQLC's Future Act, Mining and Exploration Unit (FAME Unit). In summary, Ms Douglas deposed as follows.
Ms Douglas formerly had the carriage of the future act matters for the Current Applicant in the Gudjala People Claim. Ms Douglas deposed that on 3 August 2023 she emailed members of the Current Applicant a Teams Invitation for a meeting on 22 August 2023 to introduce the FAME Unit to them, contacted each of them by telephone, and shared the invitation with Ms Lisa Taylor (the administration officer of the Ngrragoonda Aboriginal Corporation RNTBC (NAC)) so that the members of the Current Applicant could attend the meeting at NAC's office at Charters Towers. Ms Douglas gave evidence of her understanding that there was a good relationship between the members of the Current Applicant and NAC in circumstances where Ms Santo and Ms Fischer were board members of NAC. Ms Douglas shared various documents with the members of the Current Applicant including a draft Memorandum of Understanding, a draft negotiation protocol with various entities including Sunwater Limited, and NQLC policies.
Ms Douglas deposed that immediately after the meeting on 22 August 2023, she had emailed a copy of the PowerPoint presentation to Mr William Santo, and the following day had emailed it to all members of the Current Applicant. Ms Douglas further deposed:
1. ... I advised that NQLC would raise the MoU with NAC board members at their board meeting in September 2023 and that if the Board resolves to enter into it, I would return the MoU to the current applicant members for their signatures. I also advised that I anticipated that NAC will circulate an expression of interest to form a negotiation team for the Burdekin Falls Dam Raising Project and another for CopperString 2032 Project.
2. On 23 August 2023 at 3:27 pm, Mr W Santo called me to say that he did not want the applicant to lose power over the negotiations to NAC and that the applicant should form the negotiation team. Later that day, Mr W Santo emailed me, instructing that 'the four native title applicants who were elected by their family groups at the meeting held in charters towers for Gudjala People Claim are the negotiation team, not the Ngrragoonda board members'.
3. On 25 August 2023 at 9:18 am, I emailed Mr W Santo to thank him for the phone call and suggested that NQLC schedule another meeting to discuss the MoU again to resolve the misunderstanding. I proposed 1 September 2023 . At 9:59 am Mr W Santo emailed to confirm the meeting.
4. On 25 August 2023 at 10:15 am I emailed the current applicant to amend the meeting time to 9:30am on 8 September. Mr W Santo and Ms G Santo confirmed by email that a meeting on 8 September was suitable. Ms Santo and Ms Fischer also instructed me by email that they shared Mr W Santo's view regarding who should comprise the negotiation team....
5. On 7 September 2023, I emailed the current applicant with the Teams invite for the meeting to be held the following day for the purpose of clarifying the relationship and roles between the applicant and the MoU...
6. On 8 September 2023, Ms Taylor and I met via Teams with Ms Santo, Ms Dallachy and Ms Fischer who were at the AC offices, however Mr W Santo did not join the meeting by Teams despite previously confirming his availability. At the meeting, I advised that there had been some confusion surrounding the MoU and that I sought a second meeting to ensure the MoU reflected the intentions of the applicant members. Ms Taylor further explained the purpose of the MoU and that NAC can more easily fulfil certain functions than the applicant, particularly with regard to cultural heritage surveys and receiving annual payments under the Native Title Protection Conditions as NAC has a bank account. Ms Taylor sought further clarification about responding to future act notices and the applicant attendees confirmed that they wished to retain that role. They also confirmed their wish to form the negotiating team for any native title agreements, in particular with Sunwater and Powerlink. I confirmed that I would amend the MoU accordingly and circulate it for their review.
7. On 8 September 2023 at 11:45 am, despite confirming his availability by email on 25 August 2023 and verbally on 7 September 2023, Mr W Santo emailed me stating that insufficient notice had been given for the meeting earlier that day and he complained about my late phone call the previous afternoon. l replied to Mr W Santo by email advising that yesterday's phone call had been a courtesy reminder of the meeting that had already been set on 25 August 2023 but I would be more mindful in the future...
8. On 8 September 2023 at 3:15 pm I emailed the members of the current applicant confirming their instructions and attaching a revised MoU which provided that the current applicant is responsible for responding to future act notices. and Statutory Authorities, Local Government Authorities or private entities wishing to undertake activities that affect native title rights and interests in the Gudjala People Claim area, and for negotiating native title agreements, indigenous land use agreements and cultural heritage management plans or agreements in relation to that area. I also confirmed that I would settle the terms of the negotiation protocol between Sunwater and the current applicant...
9. On 15 September 2023, I forwarded two draft negotiation protocols to Emma Baird, who is retained as a heritage consultant by Powerlink, one in relation to the proposed Charters Towers Camp which is located within the Gudjala determination area and the other in relation to the Pentland Roads Camp and the transmission line within the Gudjala People Claim area.
10. On 11 October 2023, Paul Teerman, solicitor, sent correspondence to me, NQLC reception and Ms Taylor that he has been retained by the Gudjala People in all matters related to the Gudjala People Claim and that NQLC cease all immediate and future representations on behalf of the claimant group.
11. On 27 October 2023, Ms Carseldine returned the draft Sunwater negotiation protocol with proposed amendments but I did not reply due to the correspondence that was sent by Mr Teerman on 11 October 2023.

[29]

In his affidavit filed 19 November 2024 Mr Hero relevantly deposed:
1. I was a member of the applicant on an earlier Gudjala "core country" native title claim QUD147/2006, which led to our native title being recognised over the claimed area. I remember that Smokey Anderson was also a member of the applicant on that claim.
2. I am recognised as a Gudjala elder by the Gudjala community and Gudjala elders, such as Matthew Masso, Andrew (Smokey) Anderson, Richard (Dickie) Davidson, Gordon Santo, Jennifer Huxley and Tania Ault.
3. Alice Fischer, Patricia Dallachy, Gloria Santo and William Santo, who are the current applicant, are elders like the rest of us. They are not different or special.
4. Elders are important for passing on knowledge of family, our laws and country. They are respected by other Gudjala people and are called upon to represent us in matters affecting our country. Elders can't go off and do whatever they want. They have to keep the community informed about the things that they do and find out what the community wants to do. This is important as Gudjala people hold the whole of Gudjala country together. No Gudjala person has a right to country more than any other, even though there are places on our country that are more important to some families than others.
5. I attended a meeting of the Gudjala people at the Police Citizens Youth Club (PCYC) Hall at Charters Towers on 25 November 2023. That meeting had been called because the current applicant had changed our lawyer for our native title claim over our country south of Charters Towers (Gudjala Claim). That claim cover places such as Flat Rock, Harvest Home, Pajingo and St Paul's stations.
6. Like most of the Gudjala people at the meeting on 25 November 2023, I voted for keeping the North Queensland Land Council (NQLC) as the lawyer for the Gudjala Claim.
7. The first thing we did when it came to dealing with the business of the meeting on 25 November 2023 was to agree on the process we would use for making decisions. The process of voting we used was agreed by the people there because we don't have a traditional decision-making process under Gudjala law for making decisions about how and by whom native title claims should be brought and run.
8. I remember that before we decided upon the decision-making process, we added in a part where families could ask to meet separately so they could discuss a resolution amongst themselves. We all agreed to that as we have done it in the past and it allows senior people, like me, to talk to other family members and to sort out any differences they may have. Although that step is available if someone asks for it, Gudjala people know that it is all the people at the meeting who make the decisions of the Gudjala community by a majority vote. This is because we hold the whole of Gudjala country together.
9. Elders can't go against what is decided by the Gudjala people at a meeting that has been properly called.
10. At the meeting on 25 November 2023, we decided to break up into family groups before the meeting decided whether to stay with the NQLC as the lawyer for the Gudjala Claim. When we got back together, the meeting decided to stay with the NQLC.
11. I remember that William Santo walked out of the meeting on 25 November 2023 because we didn't want him to video it. Alice Fischer and Gloria Santo were there for the whole meeting. They didn't vote against the process we used for making decisions at the meeting.
12. I didn't go to the Gudjala meeting on 20 April 2024 meeting. Even though I was not at that meeting, I have to go along with what it decided. It's the same with other elders. If you want to have your say at a meeting as an elder, you tum up and do it. If you can't get to the meeting, you get other family members to go and to talk at the meeting, if there is something that needs to be said. If a meeting decides against you, whether you are there or not and whether you like it or not, you have to go along with what the meeting decides. This is because we are a community who hold our country together.

[33]

April 2024 Meeting

I have considered paragraphs 33 and 34 of the Applicant's submissions and the affidavit material to which those paragraphs refer.

In my experience, and as detailed in the minutes of the April 2024 Meeting and as I have otherwise observed during the course of my attendance at the meeting:

(a) the meeting was well organised and conducted having regard to the matters to be considered at the meeting;

(b) William Santo did, in my observation, interject aggressively when Nicole Huxley was addressing the attendees during the opening session of the meeting;

(c) I would more accurately describe Lawrence Kerr's demeanour and conduct during the opening session of the meeting as disruptive rather than upset and/or aggressive;

(d) during the opening session of the meeting, the three members of the Gudjala native title claim group who requested the authorisation meeting obtained the support of a large majority of the Gudjala People who attended the meeting to have an initial closed session without the Applicant members, all NQLC staff other than the minute taker, other legal representatives and guests (including myself as the independent facilitator);

(e) the meeting room had both front and side exit doors, with a roofed foyer and adjacent toilets beyond the front door of the meeting room, a kitchen area that opened out to the meeting room (which was also accessible via the foyer) and a covered external seating area which could have accommodated all of the persons who had been asked to leave the meeting room;

(f) once the resolution for the closed session was passed, the Applicant members, all legal representatives and guests (including myself as the independent facilitator) left the meeting room via the front and side exit doors on the understanding that we would be invited to rejoin the meeting once the closed session had concluded;

(g) I observed during the entire course of the meeting, including the closed session, that attendees entered and left the meeting room by both the front and side exit doors and:

(i) the front door was more heavily used and was left both open and closed by its users, including during the closed session;

(ii) the side door (which is a fire exit and disabled access door) was kept closed, including during the closed session; and

(iii) at no stage during the meeting, including the closed session, did I observe that the front or side door to the meeting room were locked

(h) during the closed session, I sat at the edge of the external seating area with a clear view, and within hearing range, of both doorways and where I also had a clear view of the car park;

(i) during the closed session I did not hear or see:

(i) any of the Applicant members or Paul Teerman attempting to gain entry to the meeting room or raise any concerns about the doors to the meeting room being locked; and

(ii) any other attendees make mention of or complain about their ability to gain access to the meeting room;

(j) William Santo and Paul Teerman left the PCYC venue shortly (no more than 10 minutes) after the closed session commenced, with Gloria Santo and Alice Fischer leaving the PCYC venue soon after Messrs Santo and Teerman departed; and

(k) the closed session concluded at 2 pm, after which Nicole Huxley said to me and others that she was trying to contact those of the Applicant who had left the PCYC venue to ask them to return to address the meeting.

[34]

In her affidavit filed 3 February 2025 Ms Huxley deposed that she was a Gudjala person from Charters Towers in Queensland, descended from apical ancestor Topsy Hann. Ms Huxley gave evidence about her family and Gudjala Elders, and the respect for Gudjala Elders. She deposed that she was elected as an ATSIC councillor for the western region for the period 1998-2001, and that she was the operations manager at Jupiter Mosman Housing Company Ltd, the chair of Ngrragoonda Aboriginal Corporation RNTBC (which was the Gudjala People's registered native body corporate) and a director of the subsidiary company of NAC, Gudjala People Limited.
Ms Huxley deposed that she attended the authorisation meetings of 18 March 2023, 25 November 2023 and 20 April 2024.
Materially, Ms Huxley deposed that at the 18 March 2023 Authorisation Meeting Ms Patricia Dallachy told Ms Huxley that Ms Dallachy would represent her family.
In relation to the 25 November 2023 Authorisation Meeting Mr William Santo began videoing the meeting, and Ms Huxley objected to that such that she put forward a motion to that effect. When the meeting supported that motion Mr William Santo became angry and left the meeting. Ms Huxley further deposed:
1. When it came to considering Resolution 1, we all agreed, except Lawrie Kerr, that the decision-making process we would use wasn't traditional. We also agreed with Letitia Murgha, who is a Gudjala woman that if requested, the families could meet separately to discuss a resolution before it was voted on. This is how we have done things in the past.
2. When it came to Resolution 5, to decide whether the Gudjala people wanted to change their legal representation or stay with the North Queensland Land Council (NQLC), we broke into family groups to discuss what we wanted to do. The meeting facilitator asked us to consider Resolution 5 with Resolutions 6 and 7, which dealt with whether we also wanted to replace the applicant. Earlier in the meeting, a lawyer had gone through why the meeting had been called and what was involved in moving ahead with the Gudjala Claim and I felt I understood what we were facing and what we should do.
3. My family met in the covered area out the side of the building which leads into the PCYC Hall. As I was disappointed with what the applicant had done, I thought Aunty Patsy should be replaced by Andrew (Smokey) Anderson. Aunty Patsy father is Nanny Tibby's brother. When we were in our family group, I asked the family what we were going to do and started questioning Aunty Patsy. Uncle Dick stopped the conversation and said to leave Aunty Patsy on, but she was to follow the instructions of our family and that was we wanted NQLC lawyer as the lawyer for our Gudjala claim. Aunty Patsy agreed to do this, and Smokey said that in that case, he was okay with keeping her as the applicant. Aunty Sadie was there. When we went back into the meeting and voted for Resolution 5, Aunty Patsy voted in favour of the resolution to stay with the NQLC as our lawyer. I saw her put her hand up to vote in favour of that resolution.
Ms Huxley gave detailed evidence concerning conversations in which she had participated, and events, relating to the termination of instructions to NQLC by the Current Applicant. Ms Huxley gave evidence concerning the authorisation meeting of 20 April 2024 including:
1. I was not the only person concerned that the meeting was drifting off course. Desree Shepherd asked whether we could meet without the arguing and without the applicant in the room. I proposed that we vote on whether we should ask the applicant, the NQLC and the lawyers to go outside, so we could spend some time talking amongst ourselves without having to deal with the arguing. Then the applicant, Mr Teerman and the NQLC would come back and tell us their side of the story and after that we would have the voting.
2. Aunty Patsy then asked me why I was persisting with removing them (the applicant) as they had been appointed by the elders. I replied to her that they had exceeded their authority by appointing another solicitor. I told her that they had ignored the condition of their authority that they wouldn't appoint another solicitor unless there was a meeting of the Gudjala People saying that they could do so, as we had agreed on 18 March 2023 and again on 25 November 2023. I also reminded Aunty Patsy that at the last meeting, Uncle Dick Davidson had said she could stay on as an applicant so long as she followed what we wanted and that she had agreed.
3. I said to the meeting that we needed a process for people at the meeting to get the information and work out what questions we wanted the applicant, Mr Teerman and the NQLC to answer.
4. I then put forward the resolution that the lawyers and other guests (other than the minute taker) and the applicant leave the room so that the Gudjala People who remained could have a private discussion. Desree Shepherd moved the motion, and Smokey Anderson seconded it. The motion was supported by all the Gudjala People attending except members of the applicant and Lawrence Kerr.
5. After that, I asked the applicant, the lawyers and the guests to go outside the meeting room while we met. The NQLC people and the facilitator went outside straight away. Gloria Santo and Alice Fischer went out together. William Santo was angry, and he yelled at me that I have no authority to do this. He then left the room with Mr Teerman. Aunty Patsy was the last to go outside. She was with Letitia Murgha, and before going outside, Letitia complained to me that I was kicking out an elder. I told Letitia that we were not kicking anybody out; we want them to come back and talk to us; we just need some time to talk.
6. The two security staff stayed in the room. The Board of NAC made a decision in 2022 that security at every meeting was paramount for the safety of our people and elders.
7. In the closed session, we went back through the timeline, and I spoke about my concerns and what I had found out from the NSW Law Society and my contact with Mr Teerman and his supervisor. Towards the start of the discussions, Lawrence Kerr continued to disrupt the meeting and then became abusive, so we asked him to leave, which he did. During the session, people kept asking me why the applicant was doing what it was doing, and I told them that I didn't know, and they should ask the applicant that when they came back.

[35]

...

I asked Aunty Patsy to come into the meeting room and speak with us. She came into the room, but she refused to answer our questions about how they engaged Paul Teerman and how they were going pay him. Aunty Patsy just kept saying that she couldn't answer our questions. I said to her that she was an applicant and she should answer us. Aunty Patsy refused. She did not say anything about not being able to talk for other families. She said nothing to me about the doors being locked while she had been outside.

We then asked the NQLC staff and the others to come back into the meeting. The lawyer working on the Gudjala Claim did a presentation about what we faced and what we needed to do with the claim. Cheryl Thomson spoke about costs and funding.

The facilitator then took us through the resolutions for the meeting. There were printed copies of the resolutions which people had picked up at the start of the meeting. The resolutions were also on the facilitator's computer, and he projected them, one at a time, onto a screen at the front of the room and read each one out. As with all our meetings, people could ask questions about the resolutions at any time. Many of the resolutions were similar to what we had used at earlier meetings. People moved and seconded resolutions as they were dealt with and then we voted. No-one disagreed or abstained, and all the resolutions were passed.

...

As we have done in the past, we broke into family groups to discuss who we wanted to nominate to be part of the applicant. My family including Uncle Dick Davidson wanted Smokey Anderson to be our representative. Tania Ault, Gordon Santo and Tegan Kerr were also nominated when we came back together. I tried to get Mathew Masso to nominate as well, but he did not agree. Everyone there was happy with the people nominated and the meeting voted for them to be the new applicant.

The resolutions went smoothly, and we had plenty of time to ask questions and discuss things. Once the replacement applicant had been voted on, some of the people said they needed to go. This is normally how our meetings end up. People tend to leave after the main business is sorted.

[36]

Ms Huxley also deposed that the Gudjala people had agreed that the process they would use at each meeting would be the same as they had used in the past, which was not traditional but was "what our people have come up with to deal with native title. Decisions are made by the Gudjala People as a whole by a majority vote after a resolution is moved and then seconded. When people ask, we break into family groups to discuss a resolution." (at [69]).
In responding to the affidavit of Ms Sadie McLean sworn on 21 November 2024, Ms Huxley gave detailed evidence at [72]-[77] to the effect that Ms McLean was elderly, frail, "forgets things" and, although Ms McLean and Ms Huxley are related, Ms McLean did not recognise Ms Huxley at a meeting on 2 November 2024 until Ms Huxley told Ms McLean who she was.
In respect of NQLC Ms Huxley deposed:
1. The NQLC has been the native title representative body for Gudjala country since the late 2000s. It helped Gudjala People get their native title recognised in the determinations that were made in 2014 and 2016. Since then, the NQLC has worked with Ngrragoonda and helped us make agreements with miners and the Department of Defence. The NQLC also helped Gudjala people join the Jangga #2 native title claim and to make the Gudjala Claim. While I have always been grateful to the NQLC for its assistance, my priority has always been the best interests of our people, not the NQLC.
2. Anyone who knows me, knows that I am my own person. I am not beholden to the NQLC and have never done its bidding. Nor have I ever been asked to. My sole aim is the interests of my Gudjala People. That is what I promised my mother. I was, for a time, a member of the NQLC board for the Tully ward, which does not cover Gudjala country. As I said earlier, I have lived on and off at Jumbun, which is between Cardell and Tully. I have a close relationship with the Aboriginal community of that region, and they respect the work that I do. I was approached by senior people from that region (Abraham (Abe) Muriata and Aunty Marcia Jerry) to represent them on the NQLC board. I did it for a time out of respect for those people but resigned when Gudjala people started saying that I had a conflict. That was never the case, but I didn't want those claims to get in the way of my work with my Gudjala People.
3. At no time in any of the Gudjala meetings I refer to in this affidavit did I take instructions from, or do the bidding of, anyone in the NQLC. At the meetings on 25 November 2023 and 20 April 2024, I was keen to get advice about legal and funding issues about the Gudjala Claim and was pleased it was provided by the NQLC. I wanted the applicant and Mr Teerman to provide that advice as well so that I and the other people at the meeting could consider it. I was very concerned about where the applicant was going to get the money to fund the Gudjala Claim from. Ngrragoonda is trustee of a trust fund for the benefit of the Gudjala People. My concern is that that money is used to help my people. I don't want it to end up funding lawyers.
4. As I discuss earlier at [37] and [39], I took my role in calling the meeting on 20 April 2024 very seriously, which is why I wanted to make sure that the meeting was properly notified and run, and I looked to the NQLC to help with this, as well as the costs. It is also why I asked Cheryl Thomson, the NQLC lawyer who held the information about what had been going on, to produce a timeline for me.
5. It was helpful to everyone at the meeting on 25 November 2023 and 20 April 2024 to understand what was going on with our claim, what we faced and what we needed to do. The NQLC explained this to the meetings and what it could do to help us with the Gudjala Claim, including the cost of running it. I wanted the applicant to do the same, but no-one who is an applicant ever did.
6. No-one at the meeting on 20 April 2024, including Letitia Murgha, complained about the help that the NQLC was providing to the meeting or the information that Cheryl Thomson and the lawyer working on the claim provided. The facilitator said he was a lawyer as well, but his job was to help run the authorisation meeting. He told us that he was independent and didn't represent anyone. That is how he ran the meeting.

[39]

Mr Santo affirmed two affidavits, filed 20 May 2024 and 10 July 2024. The evidence of Mr Santo in his first affidavit was substantially similar to that given by Mr Anderson in his affidavit filed 20 May 2024. In his affidavit filed 10 July 2024 Mr Santo deposed, in summary:
- He is a member of the Gudjala People and is acknowledged by the descendants of Maggie "Ton Ton" Thompson as a person who can speak authoritatively about matters affecting their family, culture and native title.
- He is a director of NAC.
- He was one of the people who called the meeting of the Gudjala People on 20 April 2024 because "Like Nicole Huxley and Tegan Kerry, I did it as a concerned Gudjala person, who the Gudjala Application has been made for. It was not a meeting of the Ngrragoonda, of which I am a director. Ngrragoonda business and matters about the Gudjala Application are difference and separate." (at [3])
- He and others wanted Mr William Santo to explain why a solicitor other than NQLC had been appointed for the Gudjala Application, however Mr William Santo did not answer Mr Gordon Santo's telephone calls or respond to text messages (at [6]).
- There is no requirement under Gudjala law and custom that all Gudjala families must have a representative who is part of the applicant of a native title claim (at [9]).
- He saw no disrespect towards members of the Current Applicant at the 20 April 2024 Authorisation Meeting. Although Mr Lawrence Kerr wanted to argue that the meeting was not properly called, one of the lawyers at the back of the meeting said the meeting could go ahead (at [11]).
- He agreed with the majority of people at the 20 April 2024 Authorisation Meeting that Gudjala people should have time to discuss their concerns about the native title claim without the Current Applicant, the staff from NQLC and the lawyers. Mr William Santo was angry that the meeting voted in that way, and left with his lawyer (at [12]). After the claim group had a discussion to that effect, the members of the Current Applicant had left, with only Ms Patricia Dallachy remaining outside the meeting room (at [12]).

[52]

On 25 March 2024, I caused to be circulated to all members of the Gudjala claim group who have their addresses recorded in the Gudjala database a letter of Ms Huxley, Ms Kerr and Mr G Santo addressed to the Gudjala People (Letter dated 25 March 2024) which included a copy of a notice calling an authorisation meeting of the Gudjala claim group at the PCYC at Charters Towers on 20 April 2024, commencing at 1.00 pm, to replace the current applicant for exceeding its power by appointing a new legal representative for the Gudjala #3 Claim (20 April Authorisation Meeting Notice). A copy of the Letter dated 25 March 2024, including the 20 April Authorisation Meeting Notice is Annexure CAT- 16 to this affidavit. 2. In the Letter dated 25 March 2024 Ms Huxley, Ms Kerr and Mr G Santo express their concerns at the actions of the current applicant and advising that they were calling an authorisation meeting of the Gudjala claim group for the purposes of asking the current applicant to explain its actions in engaging Mr Teerman instead of the NQLC as its legal representative and to consider resolutions, including a resolution to replace the current applicant for exceeding its power. Ms Huxley, Ms Kerr and Mr G Santo are members of the Gudjala claim group and directors of Ngrragoonda.
Ms Thomson deposed that she attended the meeting on 20 April 2024. Ms Thomson deposed at [47] that she read the minutes of that meeting and to the best of her knowledge and belief, based on her attendance at Sessions 1, 4 and 5 of the meeting and what occurred outside the meeting, they were true and correct.
Ms Thomson deposed at [48] that Mr William Santo's demeanour at the meeting was aggressive.
Ms Thomson deposed at [49]-[51] that Mr William Santo, Ms Alice Fischer, Mr Lawrence Kerr and lawyer Mr Teerman left the 20 April 2024 meeting and did not return.
In her affidavit filed 3 February 2025 Ms Thomson gave further evidence referable to the execution by the members of the Current Applicant of their applicant affidavits. In summary, Ms Thomson's evidence was that none of the members of the Current Applicant had concerns relating to their respective affidavits.
Ms Thomson deposed that she attended the 20 April 2024 Authorisation Meeting which was called by Ms Huxley, Mr G Santo and Ms Kerr. Ms Thomson deposed at [22]-[23] that, including herself, there were in total 4 NQLC staff present (namely herself in addition to Mr David Jesudason, Ms Julia Taylor and Ms Wethery), however there was no participation in the meeting by the three additional staff.
At [27] Ms Thomson deposed that, contrary to the statement of Ms Sadie McLean in her affidavit filed 4 December 2024 at [15], Ms McLean did not attend the 20 April 2024 Authorisation Meeting. Ms Thomson's evidence was based on:
- Ms Thomson's direct recollection;
- The fact that there was no mention of Ms McLean in the minutes of that meeting; and
- That there was no record of Ms McLean as an attendee in the 20 April Attendance Record.
Ms Thomson further deposed:
1. At [3], [4] of her affidavit Ms McLean states that she, Fay Mitchell and Edna Croydon are the oldest Gudjala Elders. I have searched the NQLC database, Ngrragoonda's membership list on the ORIC website and anthropological reports produced in relation to the Gudjala # 1 Claim and Gudjala #2 Claim and I have not been able to locate a person called "Edna Croydon". To the best of my recollection, no person identifying as Edna Croydon has ever attended a meeting of the Gudjala People that I have participated in.
2. Fay Mitchell is a member of the Masso family and is recorded in the NQLC database as a Gudjala person and she is also a member of Ngrragoonda. She is recorded as attending only the November Authorisation Meeting, however no mention is made of her in the minutes of that meeting, which are CAT-09 of my Affidavit 31 May 2024. My interactions with Fay Mitchell over recent years reveal to me that she is aged, in poor health and her memory is very poor. I do not know whether she has had a formal diagnosis of dementia, but other people who know her such as Ms Gloria Santo, her daughter and Nicole Huxley inform me that she has dementia.
At [31] Ms Thomson gave evidence that her seating position outside the meeting room during the closed session on 20 April 2024 enabled her to view the carpark, side entry of the building and the entrance at the rear of the meeting room, and:
1. ... As far as I could see and hear, neither of the entrances was ever locked. Most certainly, the entry at the rear of the meeting room, near where I was seated, was not locked because people were going in and out to access the toilets and to come outside to smoke a cigarette. I can also remember seeing Lawrence Kerr exit the meeting room via the side door.
2. I did not observe William Santo, Ms Santo, Ms Dallachy, Ms Fischer or Mr Teerman attempt to regain entry to the meeting room. As I said in my previous affidavit, after they left the building; William Santo and Mr Teerman went to one vehicle and left; Ms Santo and Ms Fischer went to another vehicle and left shortly thereafter; and Lawrence Kerr drove off after his conversation with Mr Athanasiou. Ms Dallachy was the only member of the current applicant to remain and to return to the meeting. I did not hear her complain about being locked out of the meeting.
In response to the affidavit of Ms Letitia Murgha sworn 29 November 2024, Ms Thomson deposed that:
1. ... on 20 April 2024 Ms Murgha made no complaint to Ms Thomson about the conduct of the 20 April 2024 Authorisation Meeting or the presence of NQLC staff or other non-Gudjala people at the meeting. Neither did Ms Murgha raise any of the matters she refers to in [5] of her affidavit in any part of the meeting that I attended. Nor did any other person attending the meeting raise any of those matters or complain about the NQLC presence or conduct of the meeting.
At [39] Ms Thomson deposed that the NQLC staff and other non-Gudjala people at the 20 April 2024 Authorisation Meeting were present at the request of the persons who called the meeting to carry out the registration, minute-taking and facilitation tasks that the NQLC had agreed to provide and, when requested to do so, assist the attendees to make an informed decision about matters to be considered.
At [44] Ms Thomson deposed that her role at NQLC was that of a claims lawyer, not engaging in future act issues.
Ms Thomson's evidence concluded:
1. A further authorisation meeting is likely to cost approximately $75,000. The proposed prior engagement with the current applicant's lawyers regarding the decision-making process and the agenda will be an additional cost, which could be significant if agreement is difficult to secure.
2. My engagement with older and senior Gudjala People such as Andrew (Smokey) Anderson, Nicole and Jennifer Huxley, Gordon Santo, Tania Ault, Tegan Kerr, Roe Hero, Christine Hero, and Matthew Masso since they have known that the current applicant opposes the replacement applicant's application reveals that they are frustrated as they feel their attempts to move forward with the claim through the replacement applicant are being thwarted by the current applicant where it left the 20 April Authorisation Meeting without attempting to justify what it was doing with the conduct to the Gudjala #3 Claim. Concerns which have been conveyed to me include words to the effect, "they didn't even bother to talk to us" and "we have sorted this out twice now and nothing has happened".
3. In the circumstances, I am concerned that a further meeting, as is proposed by the current applicant in its submissions, may be poorly attended. More generally, I am concerned that the frustration may extend to the general conduct of the Gudjala #3 Claim as key prospective witnesses may disengage with the claim generally and decide not to participate in its future conduct.

[57]

Proposed Resolution 1 - decision making process

The decision-making process adopted for the Authorisation Meeting is:

There will be consideration and general discussion of the resolutions by the Gudjala claimants and Elders;

During discussions, the group members defer to the authority of the Elders of the group and taking into consideration the knowledge and advice of the Elders when making decisions; and

Decisions need not be unanimous.

Moved: Jennifer Huxley

Seconded: William Santo

Resolution: Passed by a majority show of hands

Against: Three

I have read Cheryl Thompson's affidavit sworn and filed on 31 May 2024. At paragraph [9], she states:

On 18 March 2023, the Gudjala claim group acknowledged the role of elders in discussions, considered there was no traditional law or custom governing the type of decision such as the authorisation of a native title claim and adopted a process by which decisions of the meeting were made by a majority show of hands. This is reflected in Resolution 1 which is recorded in my affidavit affirmed 30 March 2023 at pages 81 and 82 of the Form 1.

I disagree that Resolution 1 "considered there was no traditional law or custom governing the type of decision such as the authorisation of a native title claim". The wording of the Resolution doesn't say that. I wouldn't have seconded it if it did.

Resolution 1 does more than "acknowledge the role of elders", as Cheryl says. Instead, it actually reflected our cultural practice and law by telling us that we had to "defer to the authority of the Elders of the group". This is our way. In our traditional decision making process, young people can't speak on behalf of Elders. In our way, young people don't make decisions in general; Elders do. In practice, what we have always done, in compliance with our law, is split into our family groups, see what the Elders have to say and what the Elders want to do, and then announce that decision back to the other family groups. This is a process which Resolution 1 facilitated and allowed, which is why I seconded it. This is also what we did in practice at the March Meeting, and this is how we chose the Applicants for our Native Title Determination Application (the Gudjala #3 claim, or, the Application).

[58]

Mr Santo deposed that he was nominated as a member of the Current Applicant because he was the second eldest family member of the Maggie "Ton Ton" Thompson family group, and possessed the most cultural knowledge and authority. In this respect he deposed:
1. ... So, we made a decision based on our cultural law and tradition, where the Elders determine what is best, and then we shared that decision with the group.
Mr Santo further deposed:
1. The other apical family, Cissy McGregor, wasn't represented because Lawrence Kerr (Laurie), the Elder with authority for that family line, decided on behalf of his family, and in agreement with his family, to abstain from participating. I didn't know this at the time, but Laurie told me later that he abstained because he didn't like the NQLC lawyers. He told me he had a history of bad experiences with them.
In respect of the appointment of a solicitor for the Current Applicant, Mr Santo deposed:
1. Once the applicants were determined, there were a few Resolutions read out at the meeting. This included what I now know to be Resolution 14, which stated that the applicants will not engage a solicitor other than NQLC to act on their behalf without holding an authorisation meeting. These resolutions were read out in quick succession. I had not received or read them prior to the meeting. At that stage, I was trusting of the NQLC, and I was happy with how they had conducted things so far. I voted in favour of that resolution, and the rest of the resolutions, without too much thought and without committing them to memory.
2. At the end of the meeting, the NQLC suddenly produced pre-written affidavits for each of the newly selected applicants to sign. These are the affidavits attached to the Form 1 application (mine is featured at pages 59 - 61 of that form). I did not write, did not read and was not advised about the contents of that affidavit by NQLC before signing it. In hindsight, I believe that NQLC should have at least explained it to me before I signed it. They just said I had to sign it to move things forward, and trusting them, I did.
Mr Santo gave evidence as to problems with NQLC, namely:
1. After the March Meeting, I started picking up on things which caused me to doubt the integrity of NQLC.
2. In April and May, mates from the Burdekin region were calling me telling me that Powerlink, a company building power lines through the Gudjala #3 claim area, were holding meetings on country with Burdekin claimants and that Gudjala people were having meetings with them as well.
3. For example, after the March Meeting I spoke to my friend, Randel Ross by phone, and the following conversation occurred:

[59]

(a) Rendel: Powerlink are having a meeting down here how come you fellas aren't here?

(b) William: We wasn't invited.

(c) Randel: Well you've got Gudjal people here talking about your claim.

(d) William: Who?

(e) Randel: Nicole Huxley, your CEO and NQLC lawyers.

This happened a lot over the course of a few months. Everyone knows me and word travels fast amongst us blackfellas. I found out that NQLC were meeting with Powerlink, another corporation called Sunwater (Burdekin Dam Project), other mining companies within the Gudjala #3 claim area and engaging in related future act negotiations without telling the Applicants. Instead, they were taking junior Gudjala people with them. The people I heard they were taking from Gudjala were Nicole Huxley, Jennifer Huxley and Lisa Reid, members of the Ngrragoonda Aboriginal Corporation RNTBC (NAC) board, as well as the NAC CEO.

In August of 2023, another friend of mine from Burdekin told me that a company called Powerlink was holding meetings with Gudjala mob. I reached out via 'LinkedIn' to introduce myself to the leaders at Powerlink, and they connected me with Karl Warcon, the Aboriginal Engagement Officer at Powerlink. He sent me a LinkedIn message with his mobile number and the contact details of another manager. In my message, I explained that I am a Gudjala #3 applicant and that I had heard the company was in discussions with Gudjala people and NQLC without including the Gudjala #3 applicants. Karl took care of the formalities and included us in the process. The executives at Powerlink noticed our names on the Native Title Register and the Federal Court record, and they apologised for not involving us earlier. They explained that they had assumed the NQLC was acting on our behalf. They sent me a copy of a draft contract called a "Negotiation Protocol - Copperstring 2.0 Transmission Project" (annexed hereto and marked 'WS-17'). One of the parties to the contract is the "North Queensland Land Council NRTB Aboriginal Corporation on behalf of the Applicants", but we as Applicants had never even heard of or sighted this agreement. NQLC had drafted this agreement without even talking to us. We knew nothing about it.

On August 23 2023 I sent Karen Douglas, Legal Officer with NQLC (Ms Douglas) an email which (in part) read as follows:

[61]

Mr Santo gave further evidence at [54]-[56] of alleged improper conduct on the part of NQLC and continued:
1. By September of 2024, the Applicants got together and decided that we had no confidence in NQLC because they were doing things without consulting us. They weren't explaining anything about the documentation they wanted us to sign and they weren't involving us in negotiations they were holding on our behalf. As a people, when we lose trust, it is very hard to get it back, and we lost trust.
2. That's why we decided to pursue our own legal representation; because we thought an independent lawyer would represent the interests of our mob better.
3. When we engaged Mr Paul Teerman of Gonzales and Co Lawyers, we did not think about Resolution 14 from the March Meeting. Those resolutions were read out in such quick succession that I didn't commit them to memory. We didn't realise we had to hold another Authorisation Meeting to appoint new lawyers. If the Authorisation meetings that were held on November of 2023 and April of 2024 were held fairly and properly, I believe we would have solved this issue by explaining to the rest of our people exactly what had happened and why we made the decisions we did. Unfortunately, we didn't get that chance.
In relation to the 25 November 2023 Authorisation Meeting, Mr Santo deposed that he came to the meeting to explain to the rest of the Gudjala People why he was concerned about NQLC, and had an exchange with Nicole and Jenny Huxley.
In relation to the 20 April 2024 Authorisation Meeting, Mr Santo deposed that he interjected during a presentation by Nicole Huxley because Ms Huxley had referred to an email Mr Santo had sent in confidence to Ms Cheryl Thompson, and Mr Santo was confused as to how Ms Huxley had obtained a copy of it. Mr Santo continued:
1. At this stage, I remember Lawrence Kerr interjecting. He was clearly upset and stated that the meeting wasn't valid. He walked up to where Nicole was reading behind the table, and shortly after, Patricia Dallachy joined him and voiced her concerns as well. However, Nicole spoke over both of them, continuing her presentation and ignoring the Elders. Lawrence expressed that the meeting had not been properly called and that the traditional processes of our people were not being respected. He referred to Section 251 of the Native Title Act and pointed out that the North Queensland Land Council, along with Nicole Huxley, Tegan Kerr, Matty Masso and Gordon Santo, were disregarding the traditional practices of our people. The barrister present at the meeting, Chris Athanasiou, told Lawrence that the meeting had been called by Nicole, Tegan, and Gordon as Gudjala common law holders. Nicole then told Lawrence to sit down.
2. I also remember Gloria Santo (Gloria) saying that the timeline which Nicole had previously read out was incomplete. She said she had evidence that the North Queensland Land Council had a meeting the previous week about the raising of the Burdekin Dam Wall without inviting the applicant. Nicole responded by saying this wasn't relevant and shutting Gloria's concern down.
3. During the opening session, none of the applicants were allowed to speak. Every time one of us tried to say something, Nicole would shut us down. This is not compliant with Gudjal law, where the Elders must be listened to first. It was disrespectful. They didn't allow the Applicants to do any talking. Gloria and Alice were saying in the opening session "we need to speak here". They ignored us and kept talking. Every time we tried to talk Nicole would override us and talk above us. She done that with Laurie and Patricia Dallachy (Patsy) too. Patsy got up and angrily said "you've got no right removing me as an applicant and you're not even allowing me to speak". That was not recorded in the meeting minutes, but it happened. Patsy is Nicole's Elder - they are in the same family. It is extremely disrespectful and a breach of our law for Nicole to disrespect, ignore and talk over the top of Patsy, her Aunty.
4. They didn't give us an opportunity to let the people know why we hired Paul Teerman and Paul wasn't given the chance to voice his concerns to common law holders. I was ready to tell my mob and everyone in the room exactly the reason why we left NQLC and I wanted to bring up the Powerlink agreement and I had a copy of it with me to show people exactly what NQLC was doing. I was going to bring all that up. But I wasn't given that opportunity.
5. I had copies of the MOU as well which I wanted to show everybody.
6. Nicole was flustered and talking over the top of everyone. All of a sudden, she proposed a resolution that all of the current applicants and all of the guests leave the room so that the rest of the Gudjala people could speak privately.
7. All of the Applicants and a number of other meeting attendees disagreed with this idea. Patricia Dallachy said that she was authorised by Senior Elder Sadie McClean to be an applicant, and the applicants were authorised by the Gudjal Elders, and she wanted to know why Nicole was so committed to removing the applicants.
8. It is offensive and disrespectful to kick Elders out of any discussion concerning our people. The April Meeting is the first time it ever happened. Elders don't get locked out. It shows how disrespectful these young people are towards elders. It never happened in all the meetings we had ever since we started King Kara Land Aboriginal Corporation in 1990. There was always discussion and even arguments but we respected the Elders voice. They were our knowledge.
9. A resolution was passed as follows:

[62]

Resolution

The meeting resolved that:

All legal representatives and guests (except the minute taker) and

The Gudjala #3 Applicant remove themselves from the room, so the Gudjala people can have a private discussion.

Moved: Desree Sheppard

Seconded: Andrew Anderson

Motion: Carried by a show of hands

Against: The Applicant and Lawrence Kerr

NH asks the Applicant and the guests to go outside the meeting room in accordance with what the meeting decided.

The members of the Applicant and guests leave the meeting room.

William Santo, Gloria Santo, Alice Fischer and Paul Teerman leave the PCYC venue at approximately 1.30PM.

Closed session commences at 1.20PM

I don't know where the rule come from of having us leave the room. Who made that rule up? After Paul and all of us applicants walked out, Letitia Murgha and a few others followed us. Auntie McClay's niece too, she come out with us and we were all talking outside. They didn't tell us how long they wanted us to wait outside in the carpark. After about half an hour or so, someone went and checked the door and tried to open it up but it was locked. Someone went around the front and front door was locked as well. Someone called out, "hey, we're locked out!". I looked at Paul and said "well they didn't even ask you to speak, Paul. You weren't even allowed to talk!" I added, "if they've locked us out of meeting it's clear they've already made their decision. They want us removed without hearing anything from us". I felt like they were intentionally shutting us out and trying to divide the family groups.

It was like a lightning bolt, a shock when they told us to leave. I've been involved in native title all my life. Even my mother's country. Elders are held in high esteem. They're waited on. If an Elder is sitting by themselves we go get them a cup of tea and make sure they're looked after. It was like a kick in the guts, being told to leave the meeting. I've never come across that in my life. I was on a lot of Boards and a lot of AGMs. This was a made up thing. Made up by Nicole Huxley. She had no power to do that.

All of us just looked at each other. We were dumbfounded.

We drove back to Townsville and I heard that they had voted on new applicants. I couldn't understand how they could do this without the family groups present and without the Elders of each family group present. This is against our protocol and our customary law. I heard that only about 20 people voted on the resolutions, meaning that of the 43 people who attended the meeting, nearly half had either left or decided not to vote. This highlights the significant disagreement among everyone there, which was evident from what I witnessed while I was still in the room.

[64]

My Place within the Gudjal (Gudjala) People

In our culture, not everybody has the same standing as everybody else, and not everybody has the authority to speak on every matter.

I'm a storyteller on my mother's side and dad's side. I wrote books to show my mum's genealogy and dad's genealogy on both sides. I've published my knowledge in books to help our people maintain our custom and law/lore.

Curtain [sic] Elders are entrusted with knowledge only if we are chosen by the senior Elders who came before us to receive it. This is the privilege I have been granted. I know the locations of important sites and boundary markers. I understand the kinship system. I know how my skin name connects to the Yilba and Wakelbara skin systems, and how my father's and mother's skin systems relate to the Gudjal skin system. I also understand how our Santo family group is connected to Jangga country and Yuru country through the right marriage skin system. When I was young, I was shown burial sites, bora rings, rock art on stations, and much more. This is the kind of knowledge that is not shared with just anyone. It is sacred and passed down only to those chosen to carry it.

The Replacement Applicants do not have sufficient cultural authority to speak on behalf of the Gudjala people. They don't have the knowledge. They don't know where the sites are. They don't know where the songlines are and how it works. They don't know the stories of the places as each clan groups family belong to a curtain [sic] area. They don't know the language names of those places. They don't know where the boundary markers are from the North Side, the East, Western side, or the Southern side, or where boundaries are for our rivers. They don't even know their skin names. Us older mob born in the 50s and 60s always went out to stations when we were young and we connected back to country. But these young ones never done that. They grew up in cotton wool. A lot of them wasn't interested in this stuff because they didn't understand it.

Even Smokey Anderson - unlike the other Replacement Applicants - may have worked at a station, but he wouldn't have any understanding of language or how language and stories connect us to country. Gordon Santo, my younger cousin, has been around since the King Kara days in the 1990s. I respect him as family, because in the Santo and Boyd families, we don't hold grudges against our own blood. However, I feel he is being misled by misinformation. While I acknowledge that he holds some authority as an Elder, it is as a junior Elder, and I believe his understanding is limited.

The Replacement Applicants' claims that we do not have any process of traditional decision making under traditional laws and customs is absolutely wrong. Of course we do - we have been around for thousands of years. They just don't know these rules and laws. At the March Meeting, these rules and laws were followed because there were Elders from each family group involved in the entirety of the meeting, and their authority was respected, and because we broke away into our family groups where those Elders could lead those conversations. But at the April Meeting, the young overrode the way we have always done things. This shows a disrespect for our way. Elders would not do this.

I have read the affidavits of Roe Edward Hero and Matthew Masso where they say that they are both Gudjala Elders and where they say that Tania Ault, Gordon Santo and Andrew Smokey Anderson are Elders of the same standing as myself, Patricia Dallachy, Gloria Santo and Alice Fischer. This is simply not true.

In Gudjalbara cultures, kinship structures establish a hierarchy of relationships based on age, experience, and seniority. Elders, who are seen as the bearers of wisdom and experience, often have authority over younger generations. Young people are raised to respect their elders and understand their place within the family or community. It's like a generational tree, where each family knows its position within that broader lineage. Take Matty Masso, for example. His father belongs to the same line as mine, so I consider his father, Robert (whose male skin name is "Wunku"), my brother. Matty's dad is on the same level as me. Matty's male skin name is "Gurrgila," and he, in turn, calls me "Uncle" or "Dad." Even though many of the younger ones around here might not know their skin names, we've always practiced respect for our blood lineages across generations. We didn't always use the skin names for it was forgotten in present day, but we knew which family group each person belonged to, and we respected the families. We knew which families came from which generational lines and understood the links. When we were growing up, all the families mixed together as one, because we saw ourselves as part of the same extended Gudjalbara family. There was no fighting among us. The Elders held authority over everything, and if any conflicts arose among the younger ones, the Elders stepped in immediately to stop it.

[65]

In her affidavit filed 29 November 2024 Ms McClean deposed that she was a Senior Elder of the Gudjala People and the granddaughter of Topsy Hann. Ms McClean deposed at [4] that she and two other Elders are recognised by the other Elders as having more cultural authority than the rest of the Gudjala People because they are more senior. Ms McClean's evidence continued:
1. Our law is very important, but not all of our people know it. Not everybody grew up how I grew up. In our law, because of my seniority, the other Gudjala people are supposed to listen to me.
2. When I was young, the kids were not even allowed to sit and listen to Elders talk. I used to get clobbed [sic] over the ears when I was sitting and listening to the Elders talking. Only if they would invite you up to sit you down and tell you stories could you go and listen.
3. When I was growing up, all of the Gudjala families were really close. Everyone understood our way. When the money come in things got complicated. And the young ones aren't being taught our way.
4. Of course we have traditional decision making processes. We are an old people with old laws and customs. We have had to make a lot of decisions over a very long time. There are laws that decide how we make decisions both within our family groups and also between our family groups.
5. One of the very important laws for our people is that I can't talk for another family and another family can't talk for me. That's why we always split into our family groups to make decisions. If one of the family groups is not there, and if the senior Elder from a family group is not there, or hasn't given someone younger than them permission to speak on their behalf, a decision can 't be made on behalf of that family.
6. It's not just that law that is important.
7. Another law is that you have to listen to your Elders. If your Elders don't approve of something, or if they are not there, you can't make an important decision on their behalf. The young ones can't speak for the old ones. They are not supposed to speak over the top of the old ones either.12. There is a system of family tree and some Elders have more authority than other ones. Some of the young ones call themselves Elders now when according to our system they aren't.
In respect of authorisation meetings, Ms McClean deposed:

[66]

Authorisation Meetings

I often feel disrespected at the authorisation meetings. The young ones like Nicole Huxley talk a lot and they don't listen to the old people who they are supposed to listen to. They don't ask me what I think or ask for my opinion. I just sit there. Apart from my own immediate family they don't even acknowledge me. No one asks me if I want a cuppa or if I need something.

March 2023 Meeting

At the meeting on 18 March 2023 I was happy that we broke into our family groups and each family selected one of the applicants in our native title application (the Application). The Cissy McGregor descendants decided not to participate. That's why there is no descendant of Cissy McGregor on the Application. That was ok, because that family and the Elders that were present at that meeting, like Lawrence Kerr, made their own decision and no one decided anything on their behalf.

April 2024 Meeting

I was really angry when I got home from the meeting on 20 April 2024. I was wild about about [sic] how they treated William Santo. They were saying he couldn't do this and couldn't do that and couldn't say this and couldn't say that. William is an Elder. They didn't let him speak and they locked him out of the meeting. It's not right. You can't lock Elders out of any discussion under our law. They have to be present for discussions and everyone has to listen to them. Patricia Dallachy is an Elder too and they wouldn't let her speak. Alice Fischer as well. It was not right. It is really disrespectful for the young ones to talk without the old ones being present, and to ask them to leave as well. If they knew our law they wouldn't have done that.

If the Elders leave, the younger ones can't come together and make decisions. You have to have the Elder of each family present and you have to listen to them . The young ones don't have cultural authority to speak for the old ones. It's disrespectful for the young ones not to let the older ones talk and to kick the old ones out and make any decisions without the Elders there.

I still feel sad and angry about that meeting.

Replacement Applicants

Smokey Anderson, Gordon Santo, Tegan Kerr and Tania Ault (young ones) are young ones. They are not Elders like William Santo, Gloria Santo, Alice Fischer and Patricia Dallachy.

This comes from our family tree system. I know all of the grandmothers and grandfathers of the applicants and the young ones. I was around.20. It also comes from the amount of knowledge someone holds about our culture and our customs and our laws. Who do you think would know more when it comes to land and knowledge of our customs and laws? Tegan is very young and can't speak on behalf of any of her old people. Tegan, Gordon and Tania haven't even been out in the bush. Smokey was for a little while but he left. Tania Ault doesn't know our law and culture. Alice Fischer is her Elder and she should listen to her. Gordon's father, Uncle Bill Santo, is an Elder and he has knowledge. He is a storyteller like William Santo, but not Gordon. According to our law, Gordon should be listening to William.

The young ones wasn't interested in living around old people when they were young. Do those young people got the knowledge to be Elders in their own right? They shouldn't call themselves that. It's disrespectful - they know nothing. We had a strict upbringing and we had to work on the cattle stations on country from when we were young. These kids today. I wish they was brought up strict like how we went through.

[68]

In her affidavit filed 29 November 2024 Ms Fischer deposed that she was a recognised Elder of the Gudjala people, and a descendant of apical ancestor Alice Anning. In respect of cultural protocols Ms Fischer deposed:
1. When Mum was alive she made all the decisions. In our way, Elders make decisions. My Mother was the one who taught me all of our ways. She taught me how to be respectful to our land and what was men's business and what was women's business.
2. When it comes to making decisions that affect the whole Gudjal people, the way that it works is that each family gets together and we have a discussion. In that discussion, the Elders have the first and last say. Elders have more say than juniors. Juniors can't decide without elders.
3. Respect is a big part of our law and apart from the young ones respecting our Elders, it also means that each family group respects other family groups. We don't make decisions on behalf of another group. This would be disrespectful and improper. We listen to what other family groups have to say and we make our own decisions. That is the way it has always been.
Ms Fischer deposed that, in her capacity as a board member of NAC, she has worked with NQLC for several years and has been disappointed by the lack of transparency and lack of communication from NQLC. In particular Ms Fischer deposed:
1. One of the main examples of my disappointment in their service was when we had a meeting with the Department of Defence about an Indigenous Land Use Agreement that we were negotiating on behalf of the Gudjal people in 2023. Gloria Santo, Lawrence Kerr and my son were all also on the negotiation team and we were being assisted and advised by Julie Taylor, a lawyer from the NQLC. During the meeting, we asked if we could have a recess so that the Gudjal people could have a discussion on it. Julie Taylor was very snappy and impatient and said "no we can't have a recess. Time has run out''. She pressured us into making a decision then and there. I remember we all looked at each other. We were thinking, 'are we here for them or for us?'.
2. The NQLC also came in and changed a lot of rules in the NAC rulebook. In hindsight, I think they pressured me and the other Board members to change it...
3. In around August of 2024, I remember being in the NAC office with Gloria Santo and the other members of the Board. We were having a meeting and Karen Douglas, a lawyer from NQLC was up on the screen. She said she wanted us to sign a Memorandum of Understanding. I said "no I'm not signing off on this. I haven't read it and I don't have any understanding of it''. Karen got frustrated and I felt like she was pressuring us to sign it. I wasn't going to sign a contract that they hadn't given me any advice about. This kind of thing made me suspicious about whether NQLC was looking after us properly or not.
4. When William Santo sent me a copy of the Copperstring Protocol in September 2024 (Annexure WS-17 to the supplementary affidavit of William Santo) and told me that the corporation had sent it to him, I realised that NQLC was negotiating with lots of companies without telling us applicants about it. They weren't even telling all of the members of the NAC board about it, because I didn't know about it. The NQLC and Nicole Huxley were working together, mostly with young Gudjal mob, to bypass us Elders and try to get things done their way.
5. I knew at that stage that NQLC didn't have our best interests in their heart and mind and that they didn't have sufficient respect of our law and protocol to represent us. That's why we wanted to go with an independent lawyer.
Ms Fischer gave evidence about the conduct of the three Authorisation meetings, including:
- The election of the applicants for the Application at the 18 March 2023 Authorisation Meeting was consistent with Gudjala cultural law, because they split into family groups and the Elders of each family group gave their blessing (at [17]).
- At the election members of the Current Applicant expected to have the opportunity to explain to the Gudjala people why they had moved away from the NQLC, however none of the members of the Current Applicant were allowed to speak (at [21]-[23]).
- Elders of each family were locked out of the 20 April 2024 Authorisation Meeting (at [28]).

[69]

In her affidavit filed 29 November 2024 Ms Santo deposed that she was a recognised Elder of the Gudjala people, descended from Zoe Masso, and a director of NAC. Ms Santo was also a member of the Native Title Applicant in Gudjala "core country" native title claim QUD80/2005 (Gudjala #1 claim) as well as QUD147/2006 (Gudjala #2 claim). Ms Santo deposed that the Gudjala People make decisions as follows:
1. From the time I have been involved with Native Title, we the Gudjal people always broke off into our respective family groups to discuss and make decisions and always listening to the advice of our Elders in our group. Then, that decision would come back to wider group for further discussions to agreed or disagreed for it to be voted on by the wider group.
2. But when comes the time to choose someone as an applicant, a representative or a spokesperson, it is then only decided by each respective family group to select their own representative to speak on their family's behalf with the blessing of the Elders from their family group. This makes it even more important for each family group to listen to what their Elders are saying.
3. I attend on behalf of my mum, who outranks me as an Elder due to her age and level of knowledge, and who authorises me to attend and act on her behalf. That is how I speak for my family.
4. One of the most important principles in our law is that each family that is not blood connected cannot speak on behalf of another.
Ms Santo deposed that she did not like the manner in which NQLC dealt with the claim, including the proposal of NQLC that the separate members of the Board of NAC negotiate with Powerlink and Suncorp, rather than members of the Native Title Applicant conduct the negotiations. Ms Santo deposed at [11] that she "felt like it was NQLC's way or no way at all."
Ms Santo gave evidence concerning the three authorisation meetings. In summary Ms Santo appeared to take no issue with the manner in which the authorisation meeting of 18 March 2023 was conducted. Ms Santo deposed that her recollection of the authorisation meeting held on 25 November 2023 was that it was focussed on whether the Gudjala people should vote to remove the Current Applicant because lawyers had been changed. In relation to the authorisation meeting of 20 April 2024 Ms Santo gave evidence that she was shocked that the members of the Current Applicant were asked to leave the room, and that when they tried to re-enter the room all the doors were locked (at [26]). Ms Santo continued:
1. I'm quite sure that I was only one at the April meeting from the Zoe family. I was certainly the most senior one from our line there. Without me being there, none of the other attendees could speak on my behalf. If a member of a family group is not there, another family group can't speak on their behalf, so no decision can be made.
2. This, in general, is the main problem I have with the April Meeting. By the time decisions were made, there were not sufficient representatives of each family group, and not sufficient Elders, in order for decisions to be made pursuant to Gudjal proper law and protocol.

[72]

Ms Dallachy opined at [17] that "the lawyers in the NQLC are there to do a job for themselves. I don't feel like they really care about the people they work for. I didn't feel like they were caring for the Gudjal people. They are always dictating and demanding things to us." Ms Dallachy continued:
1. When I found out NQLC was negotiating behind our back I was really mad. Who gave them the right to do that without ever telling us anything? When William Santo sent me the Negotiation Protocol (annexure 'WS-17' to his affidavit) I decided that I didn't want NQLC to run the Gudjala #3 application anymore. I felt like I couldn't trust them.
In relation to the authorisation meetings, Ms Dallachy took issue in her evidence with the meetings of 25 November 2023 and 20 April 2024. Ms Dallachy deposed that the meeting of 18 March 2023 was conducted by way of:
1. ...a process which followed our law - because the Elder got to choose and was respected. In our mob, a decision is only valid if it comes from the Elder or if the Elder approves it.
However Ms Dallachy gave evidence that the 25 November 2023 authorisation meeting was directed by Nicole Huxley and the NQLC lawyers:
1. After about 20 minutes of them talking at us, I started to get a bit frustrated. I stood up and said "you are not doing this our way you are doing it the white man way''. I was really upset. My daughter grabbed me and pulled me back down.
2. I was especially upset because according to our system of law and kinship, I am Nicole Huxley's Elder. She is not supposed to speak over the top of me, but she was completely ignoring me and speaking louder and louder whenever I tried to say something. She did the same thing to Lawrence Kerr and William Santo as well. They were trying to interject to have their say and Nicole wouldn't let them say anything.
Ms Dallachy deposed at [27] that the Current Applicant was not replaced at the 25 November 2023 Authorisation Meeting because Nicole Huxley's uncle, Richard Davison, who was also Ms Huxley's Elder, shut the idea down. In relation to the 20 April 2024 authorisation meeting in summary Ms Dallachy gave evidence that:
- she wanted to explain to the people who came to the meeting why she and the other applicants no longer wanted to work with NQLC, and why they wanted to remain as applicants;
- it was disrespectful that she and other Elders were asked to leave - and locked out of - a meeting;
- Ms Dallachy walked back into the meeting but could not answer questions for other Elders or other families;
- the members of the Replacement Applicant are younger people; and
- she did not understand the custom and law to make a decision to ask the Current Applicant members to leave the room.

[90]

It is not in dispute that the Gudjala Claim Group passed resolutions at the Authorisation Meetings of 18 March 2023, 25 November 2023 and 20 April 2024 prohibiting the engagement by the Applicant of any solicitor other than an in-house NQLC solicitor: see Resolution 14 at the Authorisation Meeting of 18 March 2023, Resolution 5(a) at the Authorisation Meeting of 25 November 2023 and Resolution 5 at the Authorisation Meeting of 20 April 2024.
In particular I note the evidence of Mr William Santo at paras [45] and [59] where he indicated that he was aware of Resolution 14 at the March meeting, but plainly forgot about it or paid it no regard.
There is extensive evidence from members of the Current Applicant to the effect that they ceased to trust NQLC as a result of "NQLC's conduct". That may well be the opinion of members of the Current Applicant. However, the continuation of trust or otherwise in NQLC on the part of the members of the Current Applicant did not detract from the clear resolutions of the Claim Group in three separate authorisation meetings, directing that only an in-house NQLC solicitor be engaged to act on behalf of the Applicant and the Gudjala People unless a resolution to the contrary of the Gudjala People at an authorisation meeting was obtained. Plainly, if the Current Applicant had concerns about NQLC, the Current Applicant had multiple opportunities to go to the Claim Group to obtain authorisation to engage other lawyers. I note the evidence of members of the Current Applicant that they did endeavour, at the authorisation meeting of 20 April 2024, to raise their concerns regarding NQLC (summarised at [74], [78], [84] and [93] of these reasons). However it is also clear from the evidence that, by that point, the Current Applicant had, on their own initiative, disregarded the earlier resolutions of the Claim Group concerning the engagement of lawyers, and that that disregard was cause for concern on the part of other members of the Claim Group.
There is no evidence that the Gudjala People have, at any time, passed a resolution at an authorisation meeting authorising the Applicant to engage any solicitor other than NQLC.
I am satisfied that, for the purposes of s 66B(1)(a)(iv) of the Act, the Current Applicant exceeded its authority in appointing Mr Teerman as lawyer representing it and in the Native Title proceedings.

[95]

...

Resolution 5 - Confirmation of NQLC Native Title Representative Body

The Gudjala People resolve that:

a) the Applicant is not authorised to engage a solicitor other than an in-house solicitor of the North Queensland Land Council Native Title Representative Body as the legal representative for the Applicant for the conduct and maintenance of the Gudjala People #3 Claim and matters arising in relation to it; and

b) the Applicant has exceeded its authority in engaging Paul Teerman of Gonzalez & Co, Mt Druitt (Sydney) as the legal representative for the Applicant for the conduct and maintenance of the Gudjala People #3 Claim and matters arising in relation to it.

Moved: Desree Shepard

Seconded: Andrew Anderson

For:24

Against: 0

Abstain: 0

Passed

Resolution 6 - Replacing the Applicant for the Gudjala People #3 Claim

The Gudjala People resolve to replace the current Applicant of the Gudjala People #3 Claim (Alice Fischer, Gloria Santo, Patricia Dallachy and William Santo) for exceeding its authority.

Moved: Summer Viel

Seconded: Andrew Anderson

For:24

Against: 0

Abstain: 0

Passed

209

PH: The Gudjala people need to consider who they want the new applicant to be. Gudjala have normally appointed 1 person from each apical although the current applicant only had 4 people.

CA: There is no legal requirement to have 1 person from each family. You can appoint 1 person total if you wish. Gudjala need applicants you can trust to communicate back to the people and engage with the legal process. They don't need to be of a particular age or hold all the cultural knowledge. They need to be able to consider legal advice and act on that advice. The will need to act and communicate with their lawyers. They will need to be able to have access to email and attend meetings. They should be people who will represent the interests of the Gudjala people.

The Gudjala people at the meeting break into family groups for discussion.

NH asks whether Mathew Masso can be an applicant as he's a respondent to the Jangga #2 Claim.

CT says that he can. Mr Masso declined to be an applicant member.

Once the names of the persons who would be put forward to be the replacement applicant were resolved and recorded in proposed resolution 7, people started to leave the meeting.

Resolution 7 -Authorising a Replacement Applicant for the Gudjala People #3 Claim

The Gudjala People present at this meeting resolve that the following four people are authorised to:

a) make an application under s 66B of the Native Title Act 1993 (Cth) to replace the current Applicant of the Gudjala People #3 Claim; and

b) make the Gudjala People #3 Claim and to deal with matters arising in relation to it.

[104]

Very similar evidence was given in the supporting affidavits of Ms Gloria Santo, Ms Patricia Dallachy and Mr William Santo, all dated 24 March 2023.
Evidence in support of the Form 1 Native Title Determination Application is critical to ensuring the progress of such an application. It was of the utmost importance that those witnesses gave truthful and accurate evidence in support of that application. On the material before me I am not persuaded that these witnesses, in giving the evidence that there was no traditional process of decision-making, did so without giving proper thought to such evidence, or were somehow induced to give evidence which they did not believe.
I further note that the affidavits of the members of the Current Applicant in support of the Native Title Determination Application were all dated 24 March 2023, being a week after the Authorisation Meeting of 18 March 2023 where the members of the Claim Group adopted a resolution that there was no traditional process of decision-making. If the members of the Current Applicant who gave evidence that there was no traditional process of decision-making - including Ms Fischer, Ms Santo, Ms Dallachy and Mr William Santo - had been somehow "pressured" to give false evidence at the Authorisation Meeting of 18 March 2023 (by NQLC or anyone else), they plainly would have had a week to review their positions and refuse to sign affidavits containing evidence they did not believe. Those witnesses however gave evidence of no traditional process of decision-making in the Gudjala People, and in my view that evidence should be accepted in preference to the later contradictory evidence of those witnesses alleging the existence of a traditional decision-making process.
Further, as the Replacement Applicant submitted, it is not credible that Mr William Santo (who gave evidence that he is a Financial Counsellor, an author and illustrator of multiple books, a researcher and collaborator with an anthropologist and linguists, a presenter and teacher, a former Chairperson of the Inland Land Corporation, a former applicant in the Gudjala core country claim and someone who had extensive experience with native title, land councils, corporations and developers) was or could have been cajoled or pushed into signing an affidavit that he did not want to sign or had not read or at least been given the opportunity to read.
Second, there was further extensive evidence by members of the Claim Group filed in this proceeding to the effect that there was no traditional decision-making process of the Gudjala People. In particular I note the evidence of Mr Andrew (Smokey) Anderson, Ms Tania Ault, Mr Roe Hero, Ms Nicole Huxley and Mr Matthew Masso to which I have referred earlier in these reasons. These witnesses were not called for cross-examination. Importantly, Messrs Anderson, Hero and Masso also identify as Elders of the Gudjala People, an assertion I do not understand to be disputed except to the extent that the Current Applicant alleged that one or more of those witnesses were merely "junior Elders". In my view the evidence of Mr Andrew (Smokey) Anderson, Ms Tania Ault, Mr Roe Hero, Ms Nicole Huxley and Mr Matthew Masso was credible and should be accepted, particularly as it was consistent with the original evidence of the members of the Current Applicant.
Third, while evidence was given on behalf of the Current Applicant as to an alleged traditional decision-making process whereby, for example, a decision was only valid if it came from an Elder or if the Elder approved it (see for example evidence of Ms Dallachy), or that one family could not speak for another family, this evidence was refuted by witnesses on behalf of the Replacement Applicant. Importantly, I also note that there was no anthropological evidence supporting that assertion. As Mansfield J observed in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472:
1. Of course, what is central to the claim is the evidence of the Aboriginal witnesses. As has been expressed elsewhere, anthropological evidence may provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices: per Lee J in Ward at first instance at 531. Not only may anthropological evidence observe and record matters relevant to informing the Court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses.

[106]

To the extent that the Current Applicant complained about the meeting of 20 April 2024, including the suggestion that the meeting had been improperly conducted, I am not persuaded that this was the case.
First, I note detailed evidence given on behalf of the Replacement Applicant concerning the conduct of the meeting of 20 April 2024 by senior members of the Claim Group, including Mr Andrew (Smokey) Anderson and Mr Mathew Masso. Those deponents were also Elders of the Claim Group, who had no complaint about the conduct of the meeting. I do not accept that the meeting of the 20 April 2024 was conducted in a fashion as to exclude Elders of the Claim Group.
Second, I am not persuaded that the doors of the meeting venue on 20 April 2024 were locked to prevent members of the Current Applicant (or anyone else) entering the room. Evidence of Ms Sadie McClean of locked doors can be given little weight in circumstances where it appears from the record of that meeting that Ms McClean actually did not personally attend that meeting. Further there is evidence of Ms Huxley, Mr Hunter, Mr Andrew (Smokey) Anderson and Ms Thomson that the doors were never locked. The only member of the Current Applicant who re-entered the room after the "closed" session at the meeting was Ms Dallachy, and there is no evidence that she complained on re-entering the room of the doors having been locked to prevent her entering earlier.
Third, although the Current Applicant submitted that its members had "lost trust" in NQLC, this is, in my view, essentially irrelevant, in circumstances where the Claim Group had, at multiple meetings, expressed its preference that NQLC represent the Claim Group. As I noted earlier in these reasons, if the Current Applicant considered that it was no longer in the interests of the Claim Group that NQLC be retained as the Claim Group's lawyers, an authorisation meeting should have been called where a resolution to dispense with the services of NQLC could be properly included in the meeting agenda and considered by the Claim Group.
Further, and in any event, notwithstanding the criticism of NQLC staff by members of the Current Applicant, there is no credible evidence before the Court that any person from NQLC acted improperly in the affairs of the Claim Group. In respect of the meeting of 20 April 2024 evidence indicates that:
- NQLC staff were present at the meeting to provide assistance such as registration, handing out documents and taking minutes (evidence of Ms Cheryl Thomson at [22], [23], [25], [39]);
- Ms Thomson and Mr Athanasiou did not participate in sessions 2 and 3 at the meeting; and
- Mr Hunter was present as an independent facilitator, having previously facilitated the meeting of 25 November 2023.
Fourth, the Current Applicant contended that there had not been proper authorisation of the Replacement Applicant at the meeting of 20 April 2024 to make the present interlocutory application pursuant to s 66B of the Act, in circumstances where the members of the Current Applicant were asked to leave for an important part of a very important meeting. In this respect, in Gomeroi People v Attorney General (NSW) [2017] FCA 1464 Rangiah J observed that:
1. ...The questions that must be answered under s 66B of the Act are whether the Current Applicant is no longer authorised, and whether the proposed replacement applicant is authorised, by the claim group to make the application and deal with matters arising in relation to it. The outcome of an authorisation meeting provides evidence about those matters, but the weight given to that evidence may be affected by defects in the way the claim group is notified of the meeting, or the way the meeting is conducted. Such defects may produce the consequence that the Court is not satisfied that the claim group has made the necessary authorisation decisions...
The evidence before the Court is that the members of the Current Applicant were asked to leave the 20 April 2024 Authorisation Meeting for a short time while other members remained inside. The context of this request was that the Current Applicant had retained other lawyers, and at least some members of the Claim Group wished to have a discussion without the members of the Current Applicant there. There was no evidence that the members of the Current Applicant were not to return to the meeting, or to have further input into the meeting, and indeed Ms Dallachy did return but declined to speak further. I am not satisfied that the members of the Current Applicant were not given opportunity to participate in the decision-making process of the meeting.
Finally, the Current Applicant took issue with the number of persons who voted on the resolutions at the Authorisation Meeting of 20 April 2024. The Current Applicant contended that:

Fischer on behalf of the Gudjala People v State Minister for the State of Queensland [2025] FCA 1374

At a glance

Court

Decision date

Before

Source

Judgment (110 paragraphs)

Parties

Legislation Cited (4)