Ground 5: delegate's approach to the objectors' material placed before her
253 This ground is expressed as follows:
The Delegate erred in categorising the Applicants' Affidavit evidence as "assertions" when that evidence was "sworn evidence" and was not challenged (reasons [69]). That Affidavit evidence was directly relevant to the identity of the 180 people who had provided proxies (Gardiner Affidavit [23], [32]), Peters Affidavit [42], Thorpe Affidavit [26]) the validity of some of the identified Ancestors and their acknowledged areas of country (Gardiner Affidavit [20] , Peters Affidavit [36], [37], [52], [54], [55], Thorpe [5], [12], [19] ) the deficiencies of the notice process for the Authorisation meeting (Peters Affidavit [31], [41], [46] Gardiner Affidavit [29], Thorpe Affidavit [14], [24], [39]. By reason of the approach to those affidavits taken by the Delegate she failed to take the information contained in them into account in any realistic sense, as she was bound to do.
254 The applicants confirmed by email after the hearing that the references to a "Gardiner Affidavit" in this ground were given in error and should be disregarded. None of the parties relied on any affidavit by Mrs Gardiner in their submissions, and no affidavit was from Mrs Gardiner is listed in the annexure to the delegates reasons as having been before her. I have therefore taken this ground to refer only to the affidavits of Mr Peters, Mr Murray, Ms Thorpe and Ms Xibberas.
255 The applicants submitted that the affidavits were material the delegate was required to take into account, because they were "information given to the Registrar in relation to the matter" within the terms of s 24CK(4). As I understood the respondents' submissions, they did not dispute that the effect of s 24CK(4) was to make such "information given to the Registrar in relation to the matter" a mandatory relevant consideration as that term is generally understood in administrative law. However, they did dispute that the applicants' affidavits were information "in relation to" the two limbs of s 203BE(5). They contended the affidavits were information about who held native title in the ILUA area - an inquiry outside the purview of the delegate.
256 It should now be apparent that I reject the respondents' characterisation of the affidavits, as well as significant aspects of their arguments in relation to many of the grounds which sought to draw a rigid line between material and issues about who were the people who "may hold" native title and the Registrar's task under s 24CK. There is no such rigid line, as I have explained and as in my opinion White J's reasons in Bright recognise. It would make a nonsense of the purpose of the provision, and transform the Registrar's task into an empty and meaningless one, for there to be such a line. An ILUA can only be made, and must be made, by the "native title group": see s 24CD(1). While this may include a representative body (see s 24CD(3)), when read with s 24EA in particular, the statute intends that it is those Aboriginal and Torres Strait Islander people who hold, or may hold, rights and interests in the land and waters under traditional law and custom who will be the people dealing with land and waters under the future act provisions, including the ILUA provisions. It is those people whom s 24EA binds to the terms of the agreement. The legislative scheme is not designed to facilitate the identification of the wrong people. It is designed to facilitate the identification of the people who hold, or may hold, "native title" as that concept is defined in the Native Title Act. It is not concerned with language groups as language groups, nor people with cultural or historical associations. It is concerned with holders of native title (where there is a determination), and those who can reasonably be described as likely holders of native title (where there is not).
257 Therefore, when the Registrar or her delegate is considering objections under s 24CK, and determining whether she or he is satisfied the objectors have established a representative body did not make reasonable efforts to identify those who may hold native title in the ILUA area, and did not ensure it was those people who authorised the ILUA, it may well be part of the Registrar's or delegate's task to examine and assess the material which formed the basis for the efforts undertaken by the representative body; as well as examining material which the objectors contend should have informed those efforts.
258 As I have also explained earlier in these reasons, the scope of the task for the representative body (and therefore the scope of the task for the Registrar or delegate) will always depend on the factual situation existing for the conclusion of the ILUA. There may be legal certainty about the native title holders because there is a determination of native title (and perhaps, as in Bright, a rejection of other claims for native title). Or, as in the case of the Taungurung ILUA, there may not have even been a native title application, and therefore no material at all prepared for public scrutiny about claims by a group to hold native title. There may be, as in the case of the Taungurung ILUA, a paucity of research directed at the stringent tests and the "at sovereignty" position required for native title, even if there is some research directed at the less stringent tests for the existence of a "traditional owner group" under the TOS Act. All these factual matters will affect, fundamentally, the nature of the task to be performed by the delegate.
259 I find the affidavits were relevant to the delegate's task, and on the facts of this unusual case, centrally so. The passage in Kemppi at [84] is applicable:
As s 24CK(4) provided, the delegate had to take into account, as a mandatory relevant consideration, any information that the appellants gave in support of their objection and the certificate. Therefore the delegate had to treat that information as a fundamental element in considering whether or not the delegate was satisfied that the requirements of s 203BE(5)(a) and (b) had been satisfied in relation to the certification of the application to register the Adani ILUA by QSNTS: cf: Sean Investments at 329 per Mason J, with whom Gibbs J agreed. In other words, s 24CK(2)(c) required the delegate to make his or her own decision as to whether each of the requirements in s 203BE(5)(a) and (b) were satisfied and the objectors had the onus to establish that one or both of those requirements was not satisfied: Corunna v South West Aboriginal Land and Sea Council (2015) 235 FCR 40 at [61] per Barker J.
260 It is now well established that where an administrative decision maker is required by the statute which defines and constructs her or his task to take a matter into account, the decision maker must actively engage, at an intellectual level, with the content of the information or material presented. The Full Court of this Court re-affirmed these principles in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [29]-[62]. These principles were re-affirmed, and explained, by a five member bench in Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [36]-[38]. The Full Court there emphasised that where a decision maker simply notes or refers to a matter, that is unlikely to be sufficient. What is at stake, and the centrality of the matters put forward, will be critical to the level of engagement required.
261 While s 24CK(4) does not use the verb "consider", which was the statutory term used in some of the authorities to which the Courts in Carrascalo and Omar referred (eg Tickner v Chapman [1995] FCA 1726; 57 FCR 451), it uses the unequivocal phrase "must take into account any information", and in my opinion there is no meaningful distinction to be made. The purpose of the provision is to require the decision maker to engage with that material.
262 The importance of doing so is heightened when, as with s 24CK(2)(c), the statute casts an onus on the objectors. The Registrar or her delegate must engage with the material presented by the objectors, and do so in an active and intellectually rational and reasonable way if she or he is to properly perform the task of deciding if the persuasive onus has been discharged.
263 Holding Redlich had provided the four affidavits to the delegate under cover of a letter which relevantly stated:
In the concluding paragraph of our 7 November 2019 letter, we expressed the view that, in circumstances, where the facts are in dispute and given the importance of the decision that the delegate must make in this matter, parties should submit evidence in a form which enables the decision maker to make findings of fact.
We also suggested that there should be directions for both sides to provide the decision maker with statements from representatives of the claim group and each of the objectors and that the documents relied on by the parties should be provided. Notwithstanding that our suggestion has not been taken up at this point, we enclose four affidavits with exhibits that have been filed and served in the Supreme Court proceeding.
These affidavits are relevant to the proposition that the delegate should not be satisfied that all reasonable efforts were made to ensure that all the persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified. The affidavits also go to the issue of whether persons so identified have authorised the making of the agreement.
264 The delegate referred to the four affidavits only very briefly. That she listed them in the annexure to her reasons takes the respondents' arguments nowhere. This is no evidence that the delegate engaged with the contents of the affidavits at all.
265 It is correct that [12] of the reasons states
I have taken into account the following material in coming to my decision:
• the material provided to the Registrar during the process of procedural fairness (see Attachment A for an outline of the procedural fairness steps taken)
266 A statement such as this is not conclusive: Omar at [36(f)]. As Omar and Carrascalao, and many other authorities involving template parts of reasons establish, such statements will not prevent a finding that a decision maker did not, in fact, take material into account which she or he was required to consider. Whether or not the decision maker actively engaged with the material she or he was required to engage with will be ascertained from a fair reading of the entirety of the reasons, together with the content of the material before the decision maker, the statutory task and the circumstances in which that statutory task came to be performed. In particular, those parts of the reasons which disclose the specific reasoning of the decision maker on the material before her or him will be the parts which demonstrate, one way or the other, whether the decision maker actively engaged with the consideration or material in question. The statement at [12] of the delegate's reasons is, I find, no more than a summary of the material before the delegate. It does not disclose any active intellectual engagement with the affidavits, and the remainder of the reasons demonstrate there was none.
267 The only other reference is at [69] of the reasons. This paragraph was the delegate's summary, in a series of dot points, of the submissions put by Holding Redlich on behalf of the applicants as objectors. It was taken primarily from what the delegate (and Holding Redlich) called "Annexure B", being a document annexed to the letter of Holding Redlich to the delegate dated 20 June 2019. That Annexure is entitled "Objection to Taungurung ILUA" and is 8 pages long, setting out in summary form the objections made by those people Holding Redlich represented, including the applicants. It was the first tranche of material sent to the delegate, but not the only material.
268 Only one of the delegate's dot points refers to the affidavits. This is the text of that dot point:
Mr Murray is an elder of the Dhudhuroa First Nation, and claims to hold native title in relation to some of the land or waters in the agreement area through apical ancestors who lived in the areas around Bright, Mount Buffalo and the Ovens Valley.
269 In the footnote to this dot point, the delegate refers to Annexure B again, and then adds:
Further details of those connections are set out in the affidavits provided by Holding Redlich on 29 November 2019.
270 Although there was an affidavit from Mr Murray, this reference is plainly irrelevant to the contents of the other three affidavits. Even as to Mr Murray, this is no more than a cross reference and does not demonstrate that the delegate engaged with the content of Mr Murray's affidavit, which dealt with a great deal more than a bare assertion of his "connections" to "some of the land and waters" in the ILUA area, although the delegate did not engage with this aspect of the affidavit either.
271 What I have described to this point is more than sufficient to demonstrate there was no active intellectual engagement by the delegate with the affidavits. While it is correct that some of the matters in the affidavits were also the subject of submissions by Holding Redlich, the affidavits were, as the applicants submit, sworn evidence. The point of sworn evidence is that the deponent gives the evidence on the basis of an understanding of the applicable penalties for false evidence. There is a level of seriousness which applies to affidavit evidence, as opposed to ordinary written statements by a person. The fact that the delegate described what was put to her as "assertions", while not the main point, is also not irrelevant. It does tend to suggest that she did not appreciate, as she should have, that each of the four deponents had sworn to the truth of what was in the affidavits. Granted, the deponents had not been tested, but nor was a submission put to the delegate by First Nations Legal or the State that any part of any of the affidavits should not be accepted because it was untrue.
272 I accept the applicants' submissions, as they were also put to the delegate, that the content of the affidavits went to both of the requirements in s 203BE(5). Before turning to the affidavits in detail, it is necessary to set out Schedule 3 to the Taungurung ILUA, which listed the apical ancestors whose descendants fell within the term "Taungurung and Taungurung People" as defined in the ILUA. This will contextualise the content of the affidavits.
The identified Taungurung ancestors are:
(a) Tommy Bamfield
(b) Lydia Beaton
(c) Polly Wallambyne
(d) Billy Hamilton
(e) William Hamilton
(f) Lilly Hamilton
(g) Jessie Hamilton
(h) John Franklin
(i) Louisa Shepard
(j) Elizabeth Hylett/Murchison
(k) Doctor Billy
273 To illustrate the nature and extent of the content of the affidavits, I describe the content of Mr Peters' affidavit:
(1) At [4]-[12] Mr Peters deposed to his descent from the apical ancestor Lizzie Davis (Hylett), and her grandparents Charles Tattambo and Mary. Mr Peters concluded this section of his affidavit by deposing (at [11]-[12]):
I, along with many family members, am Lizzie Davis' (nee Hylett) direct descendant. She is not a Taungurung ancestor and yet she and her country will be taken from her descendants by the Taungurung RSA.
I do not believe that the Taungurung RSA should be supported by the inclusion of Lizzie Davis (nee Hylett) as an apical ancestor nor do I believe that Ngurai Ilium Wurrung country should form part of the Taungurung claim.
(2) At [13]-[18], Mr Peters outlined his understanding of the Ngurai Illum Wurrung People and their country. He explained why on his understanding, at sovereignty, the Ngurai Illum Wurrung were a separate landholding group from the Taungurung. He set out the bases for his understanding with detailed references. He attached to his affidavit extracts from the work of the renowned historian Ms Diane Barwick, which supported his understanding, as did the work of others. It is true that at [18], Mr Peters focusses on language, but that focus was, I find, encouraged by the approach taken by First Nations Legal to much of its own views and work, which also placed language identity as an indication of rights and interests in land and waters, rightly or wrongly is not a matter that need here be debated.
(3) From [19]-[27], Mr Peters describes how he first became aware of his Ngurai Illum Wurrung descent connection in 2013, through a visit to the Melbourne Museum and his identification of one of his ancestors in photograph there. He describes the research he has been given, and what he has done himself. He annexes some of it to his affidavit.
(4) From [29]-[30] he describes his understanding of the Taungurung settlement agreement and the ILUA, and deposes at [30] to his understanding that one of the consequences of the ILUA is that no native title claim can be made over any land within the ILUA area. That understanding is correct. Mr Peters describes the effect of this, from his perspective as:
rights, heritage and title will be forever extinguished.
(5) At [31], Mr Peters deposes to how, despite being active in the Ngurai Illum Wurrung community since 2013, it was not until March 2018 that he learned of any contentions that the descendants of Charles and Mary Tattambo were considered to have descent connections with the Taungurung group.
(6) At [35]-[36], he deposes:
It therefore came to me as a matter of great surprise when, in about March 2018, a person previously unknown to me, Mr Gary Murray, informed me that:
(i) Taungurung had obtained Registered Aboriginal Party (RAP) status under the Aboriginal Heritage Act 2006 (Vic);
(ii) Taungurung had been negotiating the RSA with the Victorian Government under the TOS Act;
(iii) as part of the RSA process, Taungurung had claimed my great grandmother Lizzie Hylett as an apical ancestor of the Taungurung;
(iv) under the RSA Ngurai Illum Wurrung country would be subsumed within the RSA area; and
(v) if Taungurung were successful in their application, our heritage and native title rights would be extinguished in perpetuity by reason of the registration of the ILUA.
I was extremely upset that the effect of claiming Lizzie Davis (nee Hylett) and Ngurai Illum Wurrung country within the RSA would, in effect, result in the loss of my Ngurai Illum Wurrung identity and land and that Ngurai Ilium Wurrung people would not get the chance have a say in a potential RSA in the future or self-determine other opportunities for Ngurai Illum Wurrung people. I was also extremely upset that the process had proceeded as far as it had without consulting me and other direct descendants of Charles and Mary Tattambo.
274 Mr Peters then gives an account of his attempts to contact the Taungurung group, and to engage with First Nations Legal about his views that the Ngurai Illum Wurrung were, and have remained, a separate and distinct group from the Taungurung, including on the particularly relevant issue of holding rights and interests in land and waters within the ILUA area. It is detailed evidence but should be set out because none of it appears in the delegate's reasons, and none of it appears to have been considered at all by the delegate, despite on its face being a detailed account which was directly relevant to the question of whether First Nations Legal had made reasonable efforts to identify all those people who may hold native title in the ILUA area:
Having learnt of the proposed Taungurung RSA, and wishing to express my opposition, I took the following steps:
a. in about March 2018, I continued conducting my own further research to see whether there was any connection between the Ngurai Ilium Wurrung and the Taungurung;
b. in March 2018 I contacted First Nations Legal and Research (FNLRS) (who, I note are the solicitors on the record for the second defendant in this matter) by phone and then had email correspondence with Dr Mahnaz Alimardanian who was a Senior Researcher (Anthropology) at FNLRS. Our email chain is exhibited at "VRP-5";
c. in about late June 2018, I went to the Victorian Aboriginal Heritage Council (VAHC) website to look for information about my Ngurai Ilium Wurrung ancestry. I located there a memorandum compiled by Eleanor Bourke. Ms Bourke held the position of Chairperson of VAHC at the time the memorandum was published. Exhibited at "VRP-6" is the VAHC memorandum dated 16 July 2009. For my part, I believe that, at least amongst descendants of Charles and Mary Tattambo, there was a significant group of people who believed that their Ngurai Ilium Wurrung ancestry was important to them, it is part of who they are, and that they had not authorised Taungurung to speak on their behalf;
d. in June or July 2018 I called VAHC and emailed them. I spoke to Kathy Markotis, who was employed at VAHC. I informed Ms Markotis that the VAHC website contained a document (the memorandum) that was incorrect about Ngurai Ilium Wurrung being a clan of Taungurung and asked her why no notification had been given to us (i.e. identifiable Ngurai Ilium Wurrung people) given we were relatively easy to locate and known to many Taungurung people and members of the Taungurung corporation;
e. subsequently, on 21 June 2018 I received an email from Ms Markotis directing me to contact the Native Title Unit at the Department of Premier and Cabinet (NTU). Exhibited at "VRP-7" is a copy of the email conversation between me and Ms Markotis;
f. I subsequently called the NTU and spoke with Dean Cowie by telephone by chance as Anoushka Lenffer was absent. Mr Cowie told me he was the head of the NTU. After listening to my concerns, Mr Cowie said to me words to the effect that there was nothing he could do and that I should have got in earlier. He told me it was all too late;
g. in about June or July 2018, after speaking to Mr Cowie, I called the Taungurung corporation's (then known as Taungurung Clans Aboriginal Corporation - TCAC, now known as the Tangurung Land and Waters Council - TLAWC - the second defendant in this proceeding) head office and spoke to Chris Marshall. Mr Marshall was an employee of TCAC. It was a long telephone call and I explained in detail my concerns. I told Mr Marshall that I would like to meet with Taungurung elders to discuss my concerns and share my information about my descendancy. Mr Marshall said he would report our conversation and let the elders know that I requested to meet with them to share my evidence. He indicated a Taungurung representative would get back to me to discuss the matter, if they wanted to discuss it. He said he only worked in the office and was not indigenous and not Taungurung himself. No one from Taungurung ever responded to me;
h. having heard nothing further from Mr Marshall, I managed, after numerous attempts, to speak to Matthew Burns who is the CEO of TCAC/TLWAC. On requesting a meeting with Mr Burns and elder members of the claim group, I was told that meeting would take a couple of weeks to arrange. My conversation ended with an expectation on my part that Mr Burns would contact me about a meeting. Mr Burns did not contact me;
i. I called Mr Burns again leaving a telephone message, he then contacted me by return telephone call. I explained that I wanted to talk to the elders about my concerns. He said he would get back to me and never did;
j. in late August I attended the FNLRS office and had a long meeting with Di O'Rorke and Tim Pilbrow, both of whom I believe are or were employed as anthropologists by FNLRS. During that meeting I explained my family's connection to Lizzie Davis (nee Hylett) and, through her, to Charles Tattambo and Mary. I expressed my concern that members of my family had been coopted into the Taungurung claim without being informed or given an opportunity to express a preference. I showed them both the research I had compiled and also other references confirming our family connections from other researchers. Both Mr Pilbrow and Ms O'Rorke acknowledged to me the validity and weight of the evidence as being genuine proof of our family's descent. They said they would inform Taungurung representatives;
k. in an email sent on 17 August 2018, I requested Ms O'Rorke and Mr Pilbrow to provide me with copies of "the connection stories of Lizzie (Hylett) used in the Taungurung claim, and copies of the connection stories used to claim the lands downstream from Seymour down to Toolamba. Exhibited at "VRP-8" is an email chain between me, Di O'Rorke and Tim Pilbrow of FNLRS;
i. on 20 August 2018, I received an email from Ms O'Rorke. In her email Ms O'Rorke:
a. Accepted that I had demonstrated descent from Lizzie Hylett/Murchison/Davis and that this meant that I was supposedly Taungurung (which I do not believe I am);
b. Explained that she did not have access to documents to confirm a link between Lizzie Davis (nee Hylett) and Charles Tattambo and Mary, and requested me to provide documents to demonstrate that link;
c. Advised me that I could inspect but not have copies of the FNLRS Taungurung connection material;
See Exhibit VRP-8.
m. on 30 August 2018, I attended the offices of FNLRS and inspected some Taungurung claim connection documents (under supervision) relating to my ancestor Lizzie Davis (Nee Hylett). As a result of this examination of the documents, I concluded that their research was incorrect based on our family's long term knowledge (with stories, genealogy and photographs) and my recent research and further understanding of my family and ancestors. I later received some extracts of FNLRS research via Holding Redlich but this research does not change my view that the research is inaccurate;
n. on 22 August 2018, I wrote by email to the Premier and the Minister for Aboriginal Affairs requesting that they take action to intervene to remove the descendants of Lizzie Davis (nee Hylett) from the proposed RSA Agreement. Exhibited at "VRP-9" is a copy of the email. No one has ever answered my email;
o. on 2 September 2018, I sent an email to Ms O'Rorke and Mr Pilbrow stating my conclusions from the inspection of the documents and requested them to take steps through the FNLRS lawyers and with the Taungurung group to rectify the problems I raised. A copy of the email is at VRP-8. I do not believe I received a response to this email;
p. on 3 October 2018 I wrote to Jana Stewart in the office of the Minister for Aboriginal Affairs reiterating my concerns. Exhibited at "VRP-10" is the 3 October 2018 email. I did not receive a response;
q. on 12 October 2018, I attended a meeting at FNLRS with lawyers from Holding Redlich. Taungurung representatives were present with their FNLRS lawyers and FNLRS researchers. The meeting was not productive in resolving any issues and the sense I got was that we were again "too late" to have our claims heard; and
r. in the week commencing 24 September 2018, I attended the Elders Treaty Meeting at the Pullman Hotel in Melbourne. I met Mick Harding there. This is the first time I had met Mr Harding. I understand Mr Harding says he is an Elder of the Taungurung and he is active in the TCAC. In the course of that event, I requested to meet with Mr Harding to go through the evidence I had compiled and my concerns with him and other Taungurung elders. We exchanged personal details. He said he would get back to me. He never got back to me despite a number of text messages and phone calls I made to him.
Between March 2018 and the final authorisation meeting on 20 October 2018, I had many discussions with other plaintiffs in these proceedings who were concerned about the Taungurung RSA including Ngurai Illum Wurrung apical ancestors, Ngurai Illum Wurrung Country, Waywurru apical ancestors and Waywurru Country and Dhudhuroa Country.
Each of the plaintiffs were strongly opposed to the direction being taken by the Taungurung group and all sought to be excluded from the Taungurung RSA. They have also said to me that they also strongly believe that no one has the right to extinguish the cultural heritage rights of another Aboriginal group. It is culturally forbidden or illegal under traditional law. We discussed the possibility that, subject to being removed from the Taungurung RSA, we would work towards an RSA involving the Ngurai Illum Wurrung group, the Waywurru group, the Dhudhuroa group and the Yaitmaithang group.
In the lead up to the authorisation meeting, we authorised Holding Redlich to write to FNLRS foreshadowing motions to, in effect, excise from the RSA the Ngurai Illum Wurrung apical ancestors, the Ngurai Illum Wurrung Country, the Waywurru apical ancestors and Waywurru Country and the Dhudhuroa Country. We were also aware that there were many people who supported our position who would not, for various reasons, be able to attend the meeting. The Holding Redlich letter advised that we would attend with proxies for a number of those people. The letter also advised of motions we would seek to put to the meeting. Exhibited at "VRP-11" is the Holding Redlich letter dated 19 October 2019.
Prior to the 20 October 2018 authorisation meeting I asked members of my family and members of the broader Ngurai Illum Wurrung descendants group whether they had seen or received the FNLRS notice of the Taungurung RSA authorisation meeting. No one I spoke to had seen it or was aware of it other by me bringing it to their attention.
I drew attention to the contents of the authorisation meeting notice by email, and by posting it to the family page on Facebook. I also telephoned those whom I had contact details for and informed them of what was going on and to seek their authority to give a proxy for them. I obtained 13 proxies from descendants who could not attend at short notice. I was appointed as their proxy on the understanding that I would vote to exclude Lizzie Davis (nee Hylett) as an apical ancestor and Ngurai Illum Wurrung country from the Taungurung claim. All of the people who attended the meeting who are descendants of Charles Tattambo being Joanne Layton, Aunty Joyce Layton, Faye Cole, Gloria Davis and her two children Stacey and Paul) and me, opposed the RSA. That is, we accepted that Charles Tattambo was part of the Ngurai Illum Wurrung group, and we did not consider ourselves to be part of the Taungurung group and did not wish Charles Tattambo nor Lizzie Davis (nee Hylett) to be regarded as apical ancestors for the purposes of the Taungurung RSA.
I note that the authorisation meeting was, however, attended by a woman who claims to be a Charles Tattambo descendant, namely, Carlene Button. I do not agree that Ms Button is a descendant of Charles Tattambo. I have, subsequent to the meeting, had unsolicited correspondence with Ms Button in which Ms Button has traced her ancestry to Mary Ligomunning and claimed that Mary Ligomunning was the 'Mary' married to Charles Tattambo. My research shows that, while Charles Tattambo married a woman named Mary it was not Mary Ligomunning. Mary Ligomunning, an aboriginal, married a William Hamilton.
Their children are recorded as 'half caste'. Meaning they had a white father. Charles Tattambo was not white, he was a full blood Aboriginal, as was Mary Tattambo.
Prior to the authorisation meeting, I attended two information meetings run by FNLRS. One of the information meetings was held at the Healesville RACV Club. The other at the Radisson on Flagstaff in William Street, Melbourne. Both meetings, were conducted by Daniel Kelly (a lawyer employed by FNLRS). Each meeting was attended by approximately 12 people. I was the only Ngurai Illum Wurrung descendant present at both meetings. I told both the meetings that I was Ngurai Illum Wurrung and that I did not identify as Taungurung. I said that there had been mistakes in their research that caused me and my groups to be falsely identified as Taungurung. At the Healesville meeting, a Taungurung person, Lee Healy (who was at that time employed by the Victorian Aboriginal Corporation for Languages - VACL) addressed the meeting and agreed with me.
I understand Ms Healy to be an authority on aboriginal languages in Victoria. I understand that she co-authored a Taungurung dictionary. In a chance meeting at the VACL office subsequently, Ms Healy told me that she had previously been engaged by the Taungurung to undertake research for their RSA claim. She told me that that she disagreed with Taungurung's plan to include Ngurai Illum Wurrung in the Taungurung RSA. She also said that her engagement had been terminated by TCAC CEO Matthew Burns because she did not agree that Ngurai Illum Wurrung language was a Taungurung language. I note my understanding that historically Taungurung had also been called Doung Wurrung and the two Wurrung suffixes identify two separate language groups.
Meetings of Taungurung Claim Group
As noted above, I first became aware of the Taungurung claim in March 2018. To my knowledge no person in my broader family ever received any notices from FNLRS until prior the RSA meeting other than through me telling them about the authorisation meeting.
It was not until about July/August 2018 that started to receive notices of Taungurung meetings. The only authorisation meeting of members of the Taungurung group I attended was the Authorisation Meeting on 20 October 2018 at which I held 13 proxies. At the meeting, I recognised seven descendants of Lizzie Davis (nee Hylett). There were descendants of other Ngurai Illum Wurrung ancestors present including Margaret Gardiner, who I understand is Ngurai Illum Balug and Taungurung, Annette Xiberras who I understand is a descendant of Tooterie and Liz Thorpe who I understand to be descended of Tooterie and Louisa Sheppard.
(Emphasis added.)
275 In my opinion if the delegate had actively engaged with this evidence, it would have been readily open to her to be persuaded that First Nations Legal's general statements about its processes, and about the thoroughness and accuracy of its research, could not be taken at face value (which is, in my respectful opinion, what the delegate did). It would have been readily open to her to be persuaded that there were quite different perspectives available on who had been consulted and who had not, and indeed what the ethnographic and historical research could be seen to disclose - indeed, what it might be seen not to disclose or resolve. It would have been readily open to her to have been persuaded that Aboriginal people such as Mr Peters were not the only ones who had qualified and informed views that the Taungurung and the Ngurai Illum Wurrung were properly seen as separate and distinct groups, and it may not be the case at all that it was reasonable to see them as holding common native title over the whole of the ILUA area. It would have been apparent that one view of the narrative of what had happened was that the fact that these issues were not known to people such as Mr Peters until mid-2018 led to First Nations Legal and the Taungurung group wanting to gloss over the differences being raised, because it was all "too late", the negotiations with the Taungurung-led negotiating team having progressed to far to be readily undone.
276 All these conclusions would have been readily open to the delegate had she actively engaged with the material. Such conclusions would have readily supported a conclusion that the objectors had discharged their onus under s 24CK(2). She would not have been bound to reach these conclusions, there were factual matters for the delegate to weigh. The point is that she did not engage in that process at all.
277 From [48], Mr Peters describes his experience of the Taungurung ILUA authorisation meeting. There was no responsive evidence available to the delegate from First Nations Legal, or from TLWC. The only the source material available to the delegate were the authorisation meeting minutes. While not irrelevant by any means to the first criterion, what happened at the authorisation meeting was, of course, critical, to the delegate's task of considering whether she was persuaded by the objectors that the second criterion in s 203BE(5) had not been met - namely, that all those who had been identified through the efforts of First Nations Legal had authorised the making of the ILUA.
278 I discuss some aspects of Mr Peters' evidence about what happened at the authorisation meeting below, in the section about Tooterie. However, other aspects of this account which the delegate should have engaged with in order to perform her task included (and these are no more than examples):
(1) At [48]:
I also spoke to Chris Marshall [who was chairing the meeting]. I asked Mr Marshall why the Taungurung had never responded to my inquiries. He said he did not know but commented that they (the Taungurung) were concerned at the lateness of my enquiries and information and they did not want to hold up their proceedings.
(2) Aggressive behaviour by another Taungurung group member towards Mr Murray, and then also towards Mr Peters, impeding (on his account) his ability to address the meeting (at [53]):
Because of her interjection, my message was drowned out and with the growing interjections of others I ran out of time to speak.
(3) Generally antagonistic and hostile behaviour from other Taungurung group members (at [54]):
Again we were asked by interjecting persons in the meeting whose names I do not know why we had not raised these matters previously and again they wouldn't listen to me or people from our family who were trying to answer their question. We were accused of sabotaging the meeting.
279 These sorts of accounts should have given the delegate, if she had engaged with them, cause to carefully consider whether the conduct of the authorisation meeting was such that it nevertheless was appropriate to find, as she did at [140], that:
In my view, the conduct of the meeting was such that those present resolved to use the agreed and adopted decision making process, and, while the specific details of the process has not been provided, it is indicative that the actual process was participative and inclusive, allowing those present an opportunity to participate. For instance, the persons who were present were able to consider the proposed resolutions that were put to the floor, and participate by deciding whether or not to pass the resolutions. I also consider that the members of the Taungurung people voted in support of the resolutions to authorise the ILUA.
280 Thus, it is not correct the delegate had no "specific details". She had very specific accounts by four people who attended. None of those accounts would have supported the findings she made. She otherwise only had the minutes. Had she engaged with the affidavits, it would have been well open to her to be persuaded that the meeting was conducted in a way which sought to silence and shout down any opposition to the ILUA.
281 Further aspects of Mr Peters' evidence were directly contradictory of the view taken by the delegate about the Taungurung group definition in the ILUA, yet her reasons disclose no consideration of this evidence. At [94] of her reasons, the delegate found that:
I also note that First Nations has done extensive research into the composition of the Taungurung group, holds a genealogical register, and has also indicated that membership requires more than blood descent for a person to retain rights and interests over a particular area. I understand that those people on the database meet these criteria or have been verified through these means.
(Footnotes omitted.)
282 This passage contained a footnote to the definition of the Taungurung group in cl 1.1 of the ILUA. However, Mr Peters' evidence of how he had been "accepted" indicated that first, the database was plainly incomplete, and second that the "more than blood descent" criteria were not being regularly applied in practice.
283 At [59(iii)], in response to Mr Cowie's affidavit (which the delegate did not have and does not appear to have asked for), Mr Peters deposed:
For the purposes of paragraph (c), at no point prior to March 2018 was I aware that anyone associated with the Taungurung group recognised or accepted me, or members of my family, as a member of the Taungurung. To the extent that I have "been accepted" since March 2018, that acceptance only occurred following my meeting with the FNLRS anthropologists referred to above. Before that, all of my attempts to contact the Taungurung Group were rebuffed. Based on my correspondence with Ms Button, who also claims to be descended from Charles Tattambo, she does not accept who I am, that I am a Ngurai Illum Wurrung person or a descendent of Charles and Mary Tattambo. I also note that, to my knowledge, my connection with Charles Tattambo and Mary, has not been the subject of any consideration by "a panel of the Taungurung people appointed by the full group".
284 Again, the delegate was not obliged to accept Mr Peters' evidence. But she was required to engage with it. It was capable of demonstrating substantive failings in the process undertaken by First Nations Legal, in conjunction with those Taungurung identifying people who were directing the responses of the Taungurung group.
285 A further and separate issue raised by Mr Peters in his affidavit about the efforts made by First Nations Legal related to the way his ancestor Lizzie Davis came to be listed as an apical ancestor for the Taungurung. The issue has similarities with what I will describe as the "Tooterie issue", which I discuss below. Mr Peters deposed (at [62], responsively to Mr Cowie's affidavit):
I do not recognise any of the names of the people attending those [authorisation] meetings as descendants of Lizzie Davis (nee Hylett). I note, however, that Ms Button attended these meetings. I note, in particular, that the Taungurung Group meeting on 10 August 2013 resolved to include Lizzie Davis (nee Hylett) as an apical ancestor. In effect, what became an irreversible decision to include Lizzie Davis (nee Hylett) as an apical ancestor was made by 16 people - none of whom I understand to be descended of Lizzie Davis (nee Hylett).
286 On its face this evidence raises a serious question about the effectiveness of the process by which the apical ancestor list in the ILUA was constructed. That list is critical because it appeared to be common ground that rights and interests in land were acquired primarily by descent. Added to this were components of self-identification and "recognition", about which I say more below. However there appeared to be no debate from First Nations Legal, the TLWC or the State that the primary pathway to identifying those who "may hold" native title was descent from ancestors who were said to be those who, at sovereignty (or effective sovereignty) held rights and interests in the ILUA area pursuant to traditional law and custom. That is unsurprising in a native title context.
287 Therefore, key to the decisions whether First Nations Legal had made reasonable efforts to identify all those who held native title in the ILUA area was the nomination of apical ancestors, and the assessment by First Nations Legal of the reasonableness of the basis for that nomination, bearing in mind (as I have repeatedly emphasised) that what was in question here was the holding of native title in the ILUA area - not cultural, historical or language associations.
288 The delegate has not engaged with this issue at all, despite it also being a matter of submission on behalf of the applicants, and despite the very same issue being raised about Tooterie, and the way in which her name came to be added as an apical ancestor and then removed at the last minute at the authorisation meeting.
289 At [64], Mr Peters emphatically rejected the allegation that the objectors such as himself were responsible for the lack of consultation, or the "lateness" of matters being raised in 2018:
Any lack of engagement was entirely a result of the neglect on the part of FNLRS and the Taungurung Group to identify descendants of Charles Tattambo and engage them in the process. For his part, Mr Cowie has neglected his obligation to ensure that a fair process had taken place.
290 And then at [65], he deposed:
I refer to paragraph 29 of Mr Cowie's affidavit in which he refers to the State receiving anthropological and historical information that "concluded the Ngurai Illum and the Taungurung had common language, laws and customs". In response I make the following points:
(i) Apart from my discussions with anthropologists engaged by FNLRS in 2018 I am not aware of any discussions between anthropologists retained by FNLRS and the descendants of Charles and Mary Tattambo.
(ii) I have had limited opportunity to read the material assembled by FNLRS, however, my reading of that limited released material shows that there are inconsistencies between that material and the material I have read in undertaking my own research.
(iii) Neither I, nor other members of my family, have the resources to engage anthropologists who could review the material assembled by FNLRS.
291 In relation to both these paragraphs, again the delegate was not required to accept them - either at face value, or in combination with other evidence and information. However these paragraphs, like the rest of the affidavit, did present a quite different account of the "efforts" made by First Nations Legal, and made rational and reasonableness points about them. They could not be dismissed without consideration, especially given the very unusual and particular circumstances of this ILUA, relating as it does to a group which has never made a claim for native title, and about which little research about the "at sovereignty" position, for the purposes of native title, had been undertaken.
292 To this should be added the fact that the response from Mr Cowie, as reproduced by Mr Peters, discloses the very conflation which I have identified in ground 3 as problematic in the delegate's approach. Whether or not the Ngurai Illum Wurrung and the Taungurung "had common language, laws and customs", they may still have held separate and distinct native titles in land and waters covered by the ILUA. One example of that is how the Noongar ILUAs considered in the two McGlade decisions had been agreed, as I have explained. All depends on the content of the traditional law and custom, and what normative rules it established about landholding, and the acquisition and passing on of rights and interests in land and waters. Certainly the existence of a "common language" (even if it was the case, which the objectors contested, on the basis of what can only be described as respectable anthropological and ethnographic opinion) may not be determinative of shared rights and interest in land. None of these matters, arising from the affidavits, were considered by the delegate.
293 It is not necessary to go through the other three affidavits in detail. Suffice to say their content is of the same nature, and at the same level of detail, although I note that the Ms Xibberas' affidavit is somewhat shorter. Broadly, the four affidavits are consistent with each other, which only adds to their objective capacity to be persuasive and to assist the objectors in discharging the onus they bore under s 24CK(2).
294 The efforts of a representative body to identify all persons who may hold native title are unlikely properly to be described as "reasonable" efforts if they are inaccurate, incomplete, based on unsound research or if they represent an immovable position adopted by a representative body in the face of information which is credible and objectively worthy of further investigation, where detailed research and investigation has not otherwise occurred. The legislative scheme about ILUAs would fail miserably if that were the case. While the Court certainly makes no finding that those descriptions apply to the work of First Nations Legal in relation to the Taungurung ILUA, the point is that the objectors had presented detailed and credible sworn evidence of matters which went to both limbs of s 203BE, and with which the delegate did not actively engage, in a context where the only responsive material was at the level of generalised submissions (save for the one research paper given to the delegate).
295 The first respondent relied on what was said by the Full Court in McGlade (No 2) at [152]-[157]. I do not consider that assists the respondents on ground 5. The affidavits were clearly "information" put before the delegate by the objectors, and, for the reasons expressed above, that information is clearly "in relation to the matter" before the delegate. Those passages in McGlade (No 2) are making a different point: namely, that an allegation about objectors being "misled" was not a matter relevant to the Registrar's task, and so outside the terms of s 24CK(4).
296 Ground 5 is upheld.