The submissions
16 The Yirrganydji interlocutory applicants submitted that the principles relevant to the Court's exercise of its discretion under s 84C of the Native Title Act had been considered on many occasions and the power should be exercised only where the claim as expressed was untenable and upon the version of the evidence favourable to the respondents to the strike out application.
17 They submitted that their objection as to lack of proper conferral of authority on the claim applicant had two elements to it. One was that a native title claim can only be made on behalf of a properly constituted group, and that was where the description of the people who comprised the native title claim group was so important. The second was the propriety and the conduct of the meeting purporting to confer the authority, turning on such things as the notice given that a meeting for that purpose was being held.
18 They submitted that a native title claim cannot be made on behalf of a group that was not properly described. They submitted that the group must be all those people who hold the particular native title claimed over the area subject to the claim. Before a claim can be authorised, the claim group must be identified.
19 They referred to Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1192] where Lindgren J said:
How does s 84C, which assumes that it may be possible for an application to be struck out prior to the final determination of an application, accommodate the fact that the native title claim group is defined to mean the actual holders of the particular native title claimed? In my opinion, the answer is that the striking out remedy is available once it clearly appears that, if the application were to succeed according to its own terms, the applicants would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed, that is to say, by all the members of the 'claim group' (all the 'claimants').
20 The Yirrganydji interlocutory applicants submitted that the Gimuy Walubara Yidinji Claim had been filed on behalf of people described in Part A of the Form 1 as follows:
1. Descended from the Apical Ancestors listed below; or
2. Adopted as members of the claim group in accordance with the group's traditional law and custom.
Apical Ancestors
Jiritju of White Rock
Katui and his wife Jarindju
Jalgar (Charlie Woree)
David Dundee/Dandii/Fourmile
Andrew Dabah
Nellie (mother of Walter Fourmile and Charlie Fourmile)
Jimmy and his wife Giddie
Culum Jack and his wife Dolsi
John and his wife Maudie
Mandiruma (Annie) (wife of King Ji:mi (Ye-i-nie) of Cairns)
A person is adopted under traditional law and custom if the person is effectively raised as a child by other members of the group who are descended from the apical ancestors and the person is recognised by the group as having been adopted under traditional law and custom.
21 The Yirrganydji interlocutory applicants submitted, at [24], that in the area in respect of which the Gimuy Walubara Yidinji application had been filed there had been 20 native title claims filed, between 1994 and 2016, on behalf of peoples sharing some ancestors in common with those identified in the Gimuy Walubara Yidinji Form 1, and two non-claimant applications.
22 They submitted, at [29], that the presence of shared apical ancestors in claims and determinations demonstrated that forebears of people now calling themselves Gimuy Walubara Yidinji had variously been identified as the source of native title rights and interests in areas overlapping and abutting the Gimuy Walubara Yidinji Claim. On the basis of that shared ancestry the people who were part of the Gimuy Walubara Yidinji Claim group belonged with those neighbouring groups to whom they were related, as members of a regional system of laws and customs which was the source of the rights and interests they asserted in the Gimuy Walubara Yidinji Claim area.
23 They submitted, at [30], that, if the members of the Gimuy Walubara Yidinji Claim group had any native title rights and interests in the claim area, they must derive from the regional system of which they formed a part. That nexus to the society bound by the normative system on which the asserted rights depended, meant the people by whom the claim applicant must be authorised were all the people who held native title rights for the claim area under that normative system. The Yirrganydji interlocutory applicants submitted that must include other Yidinji people who were the descendants of the apical ancestors named.
24 Exclusion of other Yidinji descendants from the processes leading to the filing of the Gimuy Walubara Yidinji Claim was at the heart of the matters deposed by Mr Mundraby in his affidavit of 28 October 2014 and relevant to the concerns of Mr Doré in his affidavit of 28 October 2014.
25 The lack of notice and disputed integrity of the Gimuy Walubara Yidinji authorisation meeting was deposed to in six affidavits of descendants of Gimuy Walubara Yidinji ancestors.
26 On that basis, it was submitted that the Gimuy Walubara Yidinji Claim did not comply with s 61, through holding an authorisation meeting which was not brought to the attention of all of the persons holding the common or group rights and interests over the area claimed. That meant the Gimuy Walubara Yidinji Claim had not been brought on behalf of a properly defined native title claim group.
27 On the basis of the matters deposed to in the affidavit of Anne Lillian English from [18]-[24], the following were identified by the Yirrganydji interlocutory applicants as flaws in the authorisation process followed when authorising the Gimuy Walubara Yidinji Claim:
a. The Statement provided as Attachment R to the Gimuy Walubara Yidinji Form 1 did not provide a description of who the Gimuy Walubara Yidinji People were, nor provide a basis which could establish how each of the persons authorised to be an applicant was a member of the claim group.
b. The notice relied upon to provide information regarding the Gimuy Walubara Yidinji authorisation meeting did not contain any description of the Gimuy Walubara Yidinji People in order to enable persons to determine whether they ought to attend the meeting. Counsel submitted that attachment R1, the notice in the Cairns Post dated 11 October 2012, should have included the material in schedule A to Form 1, setting out the apical ancestors of the Gimuy Walubara Yidinji People.
c. In the attendance sheet, information was not provided by the signatories to describe in what capacity they attended the meeting nor how they were Gimuy Walubara Yidinji People.
d. In the record of resolutions passed at the authorisation meeting, there was no resolution passed adopting a claim group description for the purpose of the claim the meeting purported to authorise.
e. In the s 62 affidavits filed by each of the persons authorised to be the applicant for the Gimuy Walubara Yidinji Claim, which were deposed in identical terms, none of the deponents deposed that they were a member of the claim group nor otherwise described the Gimuy Walubara Yidinji People so that it could be ascertained whether and how they were each a member of the Gimuy Walubara Yidinji Claim group.
28 These defects, so the submission went, led to flaws in the authorisation of the claim. The Yirrganydji interlocutory applicants submitted that, due to the failure to define who should attend, the authorisation meeting did not allow for the attendance of the descendants of the holders of native title in the area over which the claim was to be filed, meaning the Gimuy Walubara Yidinji Claim was not authorised in the manner required by s 61.
29 Counsel for the Yirrganydji interlocutory applicants did not ask me to conclude that, for example, Mr Peter Hyde was not a member of the claim group. What counsel was putting was that Mr Hyde, for example, did not say that he was a member of the claim group or how he was a member. Counsel said that the Court could draw the inference that Mr Hyde regarded himself as a member of the claim group and it appeared that others who were at the meeting regarded him as a member of the claim group but the resolution did not provide information of who comprised the claim group. Counsel accepted that Mr Hyde would appear to be a member of the claim group but that was an inference drawn from the conduct of the proceedings. It was not stated and was not something he deposed to in his affidavit. For example, the fourth resolution lacked a description of the claim group.
30 The Yirrganydji interlocutory applicants submitted that the limitation on the category of people invited to attend and the limited form of public notice before the meeting meant that the meeting could not be fairly representative of the (proper) native title claim group.
31 They submitted, at [37], that the Court should not be satisfied that the actual native title holders were sufficiently identified to determine whether there had been a proper decision taken to authorise the Gimuy Walubara Yidinji Claim. Nor could the Court be satisfied, given the manner of notification of the meeting, that adequate notice was given of the specific purpose of the meeting or that those people affiliated with the land were put on notice of the holding of the meeting. They submitted there was failure to adequately identify members of the claim group and failure to convene the meeting in a proper manner.
32 The Yirrganydji interlocutory applicants submitted, at [39], that on the basis of the defects in the process followed to authorise the Gimuy Walubara Yidinji Form 1 and on any view of that material in a manner which was as favourable as it could be in all the circumstances to the claim applicant, the Gimuy Walubara Yidinji Claim was not validly authorised by all the persons holding the particular native title claimed, was therefore untenable and a clear case for summary dismissal had been made.
33 The Yirrganydji interlocutory applicants submitted, at [40], that proper authorisation was fundamental to the legitimacy of native title applications and where, as here, authority did not derive from a properly described claim group or adequately notified meeting, the flaws in the authorisation could not be retrospectively cured by amendment: Reid v State of South Australia [2007] FCA 1479 at [29].
34 As to costs, the Yirrganydji interlocutory applicants referred to the matters summarised in McKenzie v State of South Australia [2006] FCA 891 at [8] and submitted that extensive efforts had been made by the parties and the Court to resolve the problems caused by the overlapping claims between the Yirrganydji People and the Gimuy Walubara Yidinji. The Experts Conference convened by the Court on 15 and 16 May 2017 led to a report to the Court where there was substantial agreement between the experts with respect to 7 of 8 propositions. A mediation was convened by the Court on 28-29 September 2017, informed by the Report from the Experts Conference, where no resolution was achieved. They submitted that the claim applicant's conduct in filing the Gimuy Walubara Yidinji Claim in the manner set out above and of the proceedings was unreasonable so as to warrant an award of costs against the claim applicant.
35 The NQLC submitted that before proceeding to strike out, the Court would need to turn its mind to whether it was appropriate to exercise the discretion arising from s 84D which allowed the Court to proceed with a matter notwithstanding a failure to comply with the Native Title Act, including a failure in authorisation.
36 The NQLC submitted that factors that the Court should have regard to when considering s 84D included:
a) The nature and extent of the failure (for example - if the Court was to find that only one or two persons were not notified).
b) The possibility that even if the claim were struck out, a similar claim (authorised properly) were filed at a later date on behalf of the same claim group (the new claim).
c) If such possibility existed, NQLC submits that factors that the Court should consider should include whether by failing to make a section 84D order it would:
(i) Only serve to delay the ultimate resolution of the assertions of the claim group that they hold Native Title in the claim area.
(ii) Cause a waste of monies and in particular put respondents to extra and unnecessary expense when they have to respond to the new claim in due course.
(iii) Represent a waste of the Court's time and public monies dealing with the new claim in due course.
(iv) To the extent that any of the parties are funded from the public purse represent a waste of public monies.
d) Whether failure to make such an order runs contrary to the principles embodied in sections 22, 37M and 37N of the Federal Court Act, namely the timely and final resolution of disputes.
e) Whether concessions that were made in Case Management would be "lost" if new proceedings were instituted.
37 The State of Queensland (the State) submitted that in Ashwin on behalf of the Wutha People v State of Western Australia (No 2) [2010] FCA 1472; 191 FCR 549 at [12], Siopis J observed that, by introducing s 84D, Parliament intended that the Court was to have discretion to determine whether a defect in the authorisation of a native title determination application was to be conclusive as to the fate of that application. Accordingly, since the enactment of s 84D, it did not axiomatically follow from a determination that a native title claim had not been lawfully authorised, that the claim must, on that account, be dismissed. Rather, such a finding gave rise to the further question of whether it was in the interests of justice to proceed to hear the native title determination application, notwithstanding the defect in authorisation.
38 In the State's submission, it was relevant for the Court to take into account the following matters when determining whether a proper basis had been established to strike out the Gimuy Walubara Yidinji Claim as a "sub-group" claim:
(a) The Yirrganydji respondents have not pointed to any evidence emanating from the GWY claimants themselves which suggest that any of them regard the claim group as only a sub-set of the Yidinji people who can assert native title rights in the claim area. That includes the five GBY claim group members who provided affidavits to the Yirrganydji respondents, none of whom asserted that the composition of the GWY claim group is deficient: see affidavits filed 24 October 2017 by Brian Andrew Fourmile, Dell Schreiber, Delwyn Leroy Fourmile, Di Yeatman, and Kallin Louise Quarry.
(b) Contrary to the usual approach in strike out applications, the Yirrganydji respondents seemed to be asking the Court to accept as correct factual matters asserted in the affidavits filed by (now deceased) respondent Vincent Mundraby, and by Martin Doré of NQLC; cf. YS [3], [31]; affidavit of Anne Lillian English filed 6 October 2017 (English) at [28], [31].
(c) To the extent that the Yirrganydji respondents assert that there are "shared apical ancestors" between the GWY claim group on the one hand, and determined Yidinji claims on the other hand, the correspondence between the descriptions of the apicals in question is not readily apparent: [24]-[27], Annexure C.
(d) There does not appear to be any evidentiary basis for the contentions at YS [29]-[30] regarding the laws and customs of the GWY claim group and the broader Yidinji cultural bloc. In contrast to what is said in those paragraphs, in one of the determined Yidinji claims, Johnson on behalf of the Tableland Yidinji People #1 v State of Queensland [2012] FCA 1417, Dowsett J quoted anthropologists Hafner and Weiner's description of Yidinji country, and the nature of Yidinji landholding, as follows:
Yidinyji country stretches from the Cairns and coastal region south of Cairns up through the Goldsborough Valley and Mulgrave River regions to the Atherton Tablelands. Yidinyji territory has previously been described as divided into separate ecological zones, with a corresponding division of the social world … Indigenous groups identifying as Yidinyji comprise five separate native title claim groups, each claiming specific right to speak for a portion of country traditionally recognised as being encompassed by the Yidinyji language-culture complex. The claimants distinguish themselves from other Yidinyji social groupings thus defined, although like them, they describe themselves as members of the "Yidinyji tribe". The claimants are identified by other Yidinyji people as "Tableland mob" … or as "Top End Yidi" … , in distinction to other Yidinyji groups: the people of the Cairns region ("Gimuy"), Yarrabah ("Mandingalbay"), Lower Coastal, and the Goldsborough Valley ("Valley mob", or "Dulabed" and "Malanbarra") with whom they share a common tribal linguistic identity.
(footnotes omitted.)
39 The State submitted that relevant principles for the content of the public notice were:
(a) While the authorisation that ensues from an authorisation meeting conducted for the purposes of s 251B of the NTA must be that of the whole of the claim group concerned, it is not necessary that the notice of the meeting must result in all the members of the claim group attending the meeting. Rather, it is necessary that all the members be offered a reasonable opportunity to decide whether to attend. Accordingly, the notice of an authorisation meeting must be expressed in a form, and promulgated in a manner, that is likely to result in all the members of the native title claim group being offered a reasonable opportunity to decide whether to attend the meeting and to participate in its deliberations: Burragubba (obo Wangan and Jagalingou People) v State of Queensland (2017] FCA 373 at [31]-[32] and the cases there cited.
(b) There were decisions where the Court has found a notice of meeting to be defective because it did not sufficiently describe the native title claim group: see for example, Bolton obo the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] (the notice referred only to the generic title of the native title applications in question and not to a list of apical ancestors); Collins obo the Wongkumara People v Harris obo the Palpamudramudra Yandrawandra People [2016] FCA 527 at [31] (the notice referred only to persons "who hold or may hold native title in relation to the lands or waters in the claim area"); TJ v Western Australia (2015) 242 FCR 283 at [77]-[80] (the notice did not identify with any precision the persons who were comprised in the expression "Yindjibarndi #1 native title claim group").
(c) The ameliorative effect of s 84D must always be kept in mind. In Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270 at [46]-[47], Mansfield J indicated (obiter) that a case for proceeding under s 84D(4)(b), notwithstanding a defect in authorisation, was particularly strong where there had been two recent meetings of the claim group which endorsed a consent determination of native title, and there was "no good reason why the alleged failure to notify some claimants of meetings that occurred close to a decade ago" should be raised only weeks before a consent determination.
40 The State submitted it was relevant for the Court to take into account the following matters when determining: 1) whether a proper basis had been established to find that the Gimuy Walubara Yidinji Claim was not authorised because of a defect in the public notice; and if so, 2) whether the Court should nonetheless exercise the discretion under s 84D to allow the Gimuy Walubara Yidinji Claim to continue on foot:
(a) The submissions of the Yirrganydji respondents do not address the evidence adduced by the GWY Applicant regarding the 2012 authorisation meeting: YS [34]; cf. affidavit of Clare Anne Norris filed 1 November 2017.
(b) Four of the five GWY claim group members who provided affidavits to the Yirrganydji respondents in support of the interlocutory application deposes to having first learned about the GWY claim about three years ago in 2014, yet none explain why they had not taken steps until now to strike out the claim or raise any concerns about the efficacy of the 2012 authorisation of the claim.
(c) The Yirrganydji respondents have not provided any explanation for their delay in raising concerns about the efficacy of the 2012 authorisation of the claim.
(d) The public notice did in fact lead to Yidinji man Vincent Mundraby joining the proceeding as a respondent, and agitating his interest.
(footnotes omitted.)
41 The State also agreed with the NQLC submissions set out at [36] above.
42 The claim applicant submitted that the application of the Yirrganydji interlocutory applicants rested on a false premise - that the claim group description for the main application referred to apical ancestors already included in adjacent Yidinji native title determinations, and so the authorisation of the main application was not directed to a sufficiently broad group of people. The claim applicant disputed that submission, contending that the available facts supported a conclusion that it was wrong, and submitted that at an interlocutory stage the evidence of the claim applicant should be accepted at its highest such that the main application should not be struck out.
43 The claim applicant submitted that it was uncontroversial that the main application existed in a wider region in which many Yidinji land holding groups had successfully achieved determinations of native title. The claim was that Gimuy Walubara Yidinji People represented a distinct land holding group, much like the other Yidinji determinations.
44 The Yirrganydji interlocutory applicants pointed to the native title claim group description in Form 1 in the main proceeding and alleged that the claim group was defined by reference to some apical ancestors referred to in other Yidinji native title determinations. On the basis of those alleged facts, the Yirrganydji interlocutory applicants advanced a submission that persons properly entitled to attend the 1 November 2012 authorisation meeting for the Gimuy Walubara Yidinji Claim were "excluded".
45 The claim applicant disputed the factual premises of this submission. The report of Dr Fiona Powell, annexed to the affidavit of Clare Anne Norris filed 13 December 2017 was relied upon. The claim applicant submitted that the apical ancestors referred to in Schedule A of the Gimuy Walubara Yidinji Claim (descent from whom defined the native title claim group of the Gimuy Walubara Yidinji Claim) were not persons named as apical ancestors in any other Yidinji native title determination.
46 The claim applicant submitted that the Yirrganydji interlocutory applicants' submissions, in that respect, attempted to align the Gimuy Walubara Yidinji Claim with the circumstances in Landers v State of South Australia [2003] FCA 264; 128 FCR 495 at [32] as a native title claim group description which on its face excluded part of the group of persons on whose behalf a claim was made. On the evidence advanced by the claim applicant it was sufficiently clear for interlocutory purposes that the Gimuy Walubara Yidinji Claim was not the same as that in Landers.
47 The claim applicant submitted there could be no complaint that the authorisation meeting was not properly notified to persons descended from apical ancestors recorded in other Yidinji native title determinations.
48 The claim applicant submitted that none of the submissions identifying what was said to be "flaws in the authorisation process" should be accepted. Reference was made to Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 at [31] to the effect that it was not necessary that the notice of the meeting must result in all the members of the claim group attending the meeting, but it was necessary that all the members be offered a reasonable opportunity to decide whether to attend.
49 As to whether Attachment R to the Gimuy Walubara Yidinji Form 1 did not describe the Gimuy Walubara Yidinji People, see [27a] above, the claim applicant submitted the attachment was for the purposes of addressing s 190C. The attachment was not evidence of the adequacy, or otherwise, of the authorisation process for the Gimuy Walubara Yidinji Claim. Despite this, the factual material contained at Attachment R (which was in four parts named "R-1" through to "R-4") clearly did address the description of the claim group. Attachment R-4 comprised a written account of the meeting given by anthropologist Bruce White which described the claim group's careful consideration of the claim group description: see the affidavit of Clare Anne Norris filed 1 November 2017, Annexure CAN6.
50 As to whether the notice for the authorisation meeting for the Gimuy Walubara Yidinji Claim did not describe the Gimuy Walubara Yidinji People, so as to enable a person to determine whether they should attend the meeting, see [27b] above, the claim applicant submitted that the witnesses whose evidence was relied upon by the Yirrganydji interlocutory applicants instead deposed to not having seen the authorisation meeting notice at all. Despite this, the authorisation meeting notice provided a general invitation, in addition to the invitation to Gimuy Walubara Yidinji People, to "other people who assert that they hold native title in the proposed claim area" to attend the meeting. The claim applicant submitted that if any person was unsure of whether they should attend the meeting or not (which was not admitted) the notice encouraged their attendance in any case.
51 As to whether the attendance sheets for the authorisation meeting did not record the "capacity" in which persons attended the meeting, see [27c] above, the claim applicant submitted that attendance sheets were not evidence of the adequacy of an authorisation meeting. There was no requirement for such "capacity" descriptions to be set out in meeting attendance sheets. They submitted the capacity issue was irrelevant.
52 As to whether no resolution was passed at the meeting adopting a claim group description for the Gimuy Walubara Yidinji Claim, see [27d] above, the claim applicant submitted that the claim group description was contained in the draft Form 1 that was shown to the meeting and discussed. A separate list containing proposed ancestor names was handed around during the meeting for discussion and also projected onto a screen. The meeting then resolved to adopt the Form 1 discussed at the meeting.
53 As to whether the s 62 affidavits of the members of the applicant did not record that each of them was a member of the claim group, see [27e] above, the claim applicant submitted that there was no requirement in the Native Title Act that a s 62 affidavit contain this information. In any event, it was submitted, the claim applicant for the Gimuy Walubara Yidinji Claim consisted of members of the claim group, and a resolution confirming that fact was passed at the authorisation meeting.
54 As to whether the "limitation on the category of people invited to attend", and the "limited form of public notice" for the authorisation meeting, meant that the meeting was not fairly representative of the native title claim group, the claim applicant submitted that the public notification for the authorisation meeting included public radio announcements, social media communications, personal communications and a newspaper advertisement. In any event, the notice of the Gimuy Walubara Yidinji authorisation was clearly directed to any person asserting a native title interest in the Gimuy Walubara Yidinji Claim area.
55 The claim applicant adopted the submissions of NQLC and the State in relation to s 84D.
56 As to costs, the claim applicant submitted that none of the matters raised in submissions amounted to an "unreasonable act or omission" or unreasonable conduct. To the extent that the Yirrganydji interlocutory applicants relied on their dissatisfaction with the outcomes from mediation, that was an inappropriate basis upon which to argue for costs in the present interlocutory application. In the event that they were successful, the Yirrganydji interlocutory applicants should not have their costs under s 85A.