Illin on behalf of the Bindal People #2 v State of Queensland

Is the applicant authorised by the reconstituted claim group to prosecute the amended claimant application? 22 The sole question to be determined as between the parties is whether, by passing resolutions 5 and 6 at the second meeting, the reconstituted claim group vested the relevant authority in the current applicant. That is to say, whether on their proper construction resolutions 5 and 6 had the effect of authorising the applicant not only to file the amended claimant application and instruct NQLC, but also to prosecute the claim. 23 The applicant submits that by passing resolutions 5 and 6, the reconstituted claim group validly authorised the applicant to both file the amended claimant application (including Schedule E) and to prosecute it in accordance with ss 62A and 251B of the Native Title Act. The applicant's primary submission in this regard is that if the applicant is authorised to file the amended claimant application as a result of resolutions 5 and 6, which the State and Indigenous respondents accept, then it must also be the case that the applicant is authorised to do all things necessary under the Native Title Act in relation to the application, including to prosecute the claim. The applicant's position is that it is irreconcilable that a claim group may be found to authorise an applicant to file an amended claim, and instruct solicitors to deal with all matters in relation to the claim, but nevertheless be found to have failed to authorise the applicant to prosecute it. 24 To find that the applicant is not authorised to prosecute the amended claimant application, it submits, would ignore the fact that resolutions 5 and 6 were passed unanimously by the reconstituted claim group, it would ignore the evidence of members of the applicant who depose to a belief that they are authorised, and it would take a prescriptive approach to authorisation which would be inconsistent with the requirements in s 251B of the Native Title Act. 25 The applicant also submits that having obtained authorisation at the second meeting which was not limited in any way, it was therefore authorised to make the amendments in Schedule E to the amended claimant application to give effect to what was agreed in the statement of agreed facts. The State accepts that if the applicant was validly authorised to prosecute the claim, there is no issue as to the amendments made to Schedule E to give effect to what was agreed between the parties at the meeting on 23 August 2024. 26 The State's position, however, is that the evidence does not support the conclusion that the Bindal Applicant was authorised by the reconstituted claim group as required by the Native Title Act at the second meeting. The State submits that having authorised a reconstituted claim group at the first meeting, it was necessary at the second meeting for the reconstituted claim group to authorise the current applicant (or another applicant) to make the amended claimant application and deal with all matters arising in relation to it under the Act. It says that notwithstanding the fact that resolutions 5 and 6 were validly passed, they do not establish that the reconstituted claim group authorised the applicant to make and prosecute the amended claimant application. 27 The State submits that the question to be resolved in determining the effect of resolutions 5 and 6 is what, on their true construction, resolutions 5 and 6 authorised and that this question is resolved by determining what the members of the reconstituted claim group present at the second meeting understood themselves to be voting on in passing them. The State submits that the evidence before the court demonstrates that those present understood themselves to be voting only in support of what is actually stated in the resolutions, and not that they understood them to have the broader effect of supporting the applicant not only in filing the amended claimant application, but also in prosecuting it. 28 The Indigenous respondents, taking substantively the same position as the State, submit that there is a fundamental problem with authorisation, being that the applicant cannot identify the source of its authority to prosecute the claim from the second meeting. This is said to be impermissible under the scheme of the Native Title Act. They say that the vesting of authority in NQLC to represent the applicant in prosecuting the claim is not substitution for the authority of the applicant to provide those instructions. It is their position that the applicant cannot demonstrate that the reconstituted claim group was given the opportunity to vest their authority in the current applicant. 29 The critical issue, the State and Indigenous respondents submit, is that it cannot be determined on the face of resolutions 5 and 6, or the minutes of the second meeting more generally, that the descendants of Jinnie (Jenny) Ross were given an opportunity to participate in the decision making as to whether the applicant would represent them in the Bindal #2 Application. This is said to be of particular significance in the context of this application which to date has proceeded on the basis that the descendants of each apical ancestor listed in the claim group description have a representative member in the listed applicant group. 30 The issue, however, is not whether the Ross family would necessarily have authorised the current applicant (which does not include a member of their family) to prosecute the claim on their behalf. There is no issue taken with the fact that the applicant was not amended or replaced at the second meeting to include a descendant of Jinnie (Jenny) Ross or otherwise. The problem, which exists irrespective of whether it manifests itself practically, is that there is a part of the claim group who has not had the opportunity to participate in any form of decision making as to who will prosecute the claim. 31 For the reasons that follow, I have formed the view that the submissions of the State and the Indigenous respondents should be accepted. 32 Although it is true that s 251B of the Native Title Act does not impose prescriptive requirements as to authorisation of an applicant for the purpose of s 62A: Gomeroi People v Attorney General of New South Wales [2017] FCA 1462 at [44]-[46] (Rangiah J); it is of central importance to the conduct of native title applications that those who bring them, and exercise the associated rights and responsibilities, have the authority of their groups to do so: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43]-[44] (French J). Such authorisation has been found by the Full Court as going to this court's jurisdiction to hear and determine native title applications: Wyman v Queensland (2015) 235 FCR 464 at [467] (North, Barker and White JJ). 33 Where a claim group is to be reconstituted a two step process is required. The first step is for the existing claim group to resolve for themselves to be reconstituted. The second step is for the reconstituted group to authorise the current applicant or a new applicant to make and prosecute the claim on its behalf: Nona on behalf of the Badu People (Warral and Ului) v State of Queensland [2020] FCA 983 at [98] (Mortimer J); Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746 at [57] (Reeves J); Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2022] FCA 65 at [17] (Bromberg J). It is critically important that the outcome of native title applications reflects in a legitimate sense, the informed consent of the relevant claim group: Weribone v Queensland [2013] FCA 255 at [39] (Rares J) citing Bolton at [46] (French J). 34 The question to be determined in considering whether the reconstituted claim group, and in particular the Ross family, has given its informed consent for the applicant to prosecute the claim on its behalf is what they actually understood themselves to be voting on: see by analogy Gomeroi at [201] (Rangiah J). It is for this reason, as the State submits, that the fact resolutions 5 and 6 were passed unanimously is not to the point. The unanimity of votes in favour of their passing is separate to the question of what in fact those group members understood themselves to be voting on. 35 The State submits, and I accept, that on a plain and ordinary reading of the text of resolution 5, the reconstituted claim group can be understood to have been voting in favour of authorising the current applicant to amend and make all necessary changes to the Form 1 to include the descendants of Jinnie (Jenny) Ross, and no more. 36 Similarly, on a plain reading of resolution 6, the applicant is authorised to instruct NQLC to act on its behalf and do all things necessary to prosecute the application, and no more. With respect to resolution 6, I accept that it is not implicit that authorising NQLC to prosecute the amended claimant application necessarily means the current applicant has also been authorised to do so. I accept that these things are separate. It matters not for present purposes who is authorised to take and act upon instructions given by the applicant, but rather, who that applicant is. 37 While resolutions 5 and 6 can be said to have the combined effect that the reconstituted claim group authorised the amended claimant application to be prosecuted, they say nothing about by whom it is to be prosecuted; whether by the current applicant, or a different applicant. 38 I am also satisfied that there is nothing else on the face of the minutes of the second meeting, or any of the affidavits relied on by the applicant, that despite the ordinary meaning of resolutions 5 and 6 that any of the attendees understood their effect to be to authorise the applicant to prosecute the amended claimant application. 39 In fact, as is submitted by the State and Indigenous respondents, there is evidence reflected in the minutes that at least one member of the reconstituted claim group, being a member of the Ross family, did not understand the effect of resolutions 5 and 6 to be that she had authorised the current applicant to prosecute the claim. It is recorded in the minutes that at the conclusion of the second meeting this member of the Ross family asked the following question: "how do we determine the applicants for each family group?" Ms Thomson apparently responded to Ms Ross with what was described in argument to be legally the wrong answer, as follows: We are not amending the applicants today. There is no intention to change the applicant. We have seven applicants and they are capable for representing the Bindal people not individual families 40 The State submits, and I accept, that in circumstances where a member of the Ross family was told in effect by a member of the applicant's legal representative that the reconstituted claim group was not at the second meeting being given the opportunity to vote in favour of or amend the current applicant, it cannot be said that by voting in favour of resolutions 5 and 6 they were giving their informed consent that the current applicant be authorised on their behalf in accordance with the Native Title Act to prosecute the claim. The second meeting was Ms Ross' first opportunity to authorise an applicant to prosecute the claim on her behalf as a newly added member of the claim group. Given the evidence outlined above, I am not satisfied that she, at least, understood that she had this opportunity. 41 Put differently, I am not satisfied, having regard to the importance of authorisation in native title applications, in addition to the requirements of s 251B of the Native Title Act, that once the reconstituted claim group was authorised it then provided its informed consent to authorise the applicant (or a different applicant) to prosecute the claim: Bolton at [46 (French J); Nona at [98] (Mortimer J); Doctor at [57] (Reeves J); Champion at [17] (Bromberg J). 42 Nor am I satisfied that the applicant is assisted by the evidence of members of the listed applicant group on which it relies. As the State submits, this evidence is not relevant in determining the question of what members of the reconstituted claim group understood themselves to have been authorising at the second meeting. In any event, I am not satisfied that in these affidavits the relevant members of the applicant depose to any belief other than that they were authorised to file the amended claimant application. This falls short of a belief that they were authorised (at the second meeting) to prosecute the claim. 43 I do not accept, as the applicant submits, that my findings in this regard are inconsistent with the relevant provisions of the Native Title Act, in particular s 251B. While I accept that authorisation requirements are not, and ought not be, prescriptive, the reality is that s 251B requires an applicant to be authorised to make and deal with all matters relating to a native title application: Gomeroi at [47]. I do not regard the problem identified by the State and the Indigenous respondents in this case, which I have accepted on the evidence, as one which reflects an overly pedantic approach: see Gomeroi at [44]-[46] (Rangiah J). 44 I am therefore satisfied that there is a defect in the applicant's authorisation to do what it seeks to do by its interlocutory application, that being to file and prosecute the amended claimant application. The applicant cannot demonstrate that it holds the authorisation of the reconstituted claim group to prosecute the native title claim as amended, including by claiming the rights and interests as described in Schedule E as amended in the amended claimant application.

Can the defect be cured by an order under s 84D of the Native Title Act? 45 In circumstances where I have found there to be a defect in authorisation, the discretion under s 84D(4) of the Native Title Act is enlivened. Section 84D(4) enables the court, after balancing the need for due prosecution of the application and the interests of justice, to hear and determine the amended claim despite that defect, or make other such orders as it considers appropriate. The applicant seeks an order pursuant to s 84D(4)(a) that the court hear and determine the amended claimant application despite the defect in authorisation if it be concluded that there is one. 46 Here, the effect of such an order would be to allow the current applicant in the Bindal #2 Application to continue to prosecute the claim in circumstances where I have found that the reconstituted claim group, in particular the Ross family, have not authorised it to do so. The alternative is to require the applicant to hold a further authorisation meeting in order to obtain such authorisation and therefore rectify the defect. 47 The applicant submits, and I accept, that the considerations relevant to the exercise of the discretion pursuant to s 84D of the Native Title Act include the expense and inconvenience to be suffered by the applicant if required to bring a fresh application or be re-authorised, the public interest in claims being conducted in a way that is just, inexpensive and efficient, and the potential for there to be delay in the determination of the existence of claimed native title rights and interests if strict compliance with authorisation is required: see Akiba v Queensland (2010) 204 FCR 1 at [931] (Finn J); Miller v State of South Australia (Far West Coast Sea Claim)(No 2) [2018] FCA 599 at [93] (White J); and Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450 at [187] (Collier J). 48 The applicant's position is that it is in the interests of justice to allow the amended claimant application to proceed in circumstances where a further authorisation meeting would require the applicant and its legal representative to outlay significant time and expense, and the amended claimant application will not be the subject of a contested hearing but will instead proceed to a consent determination following the Contested Apicals Separate Questions. It also submits that the evidence before the court is supportive of the defect being excused where it indicates that: (1) it was in fact the intention of the reconstituted claim group that the amended claimant application be prosecuted, including because resolutions 5 and 6 were passed unanimously; and (2) in the seven affidavits filed by members of the Bindal Applicant, these members of the applicant depose that they consider themselves to be authorised by the reconstituted claim group. 49 The State and the Indigenous respondents submit that s 84D does not provide the court with an appropriate way of curing the defect in authorisation in circumstances where the defect is substantive and, if excused, is likely to severely prejudice the interests of persons who may be native title holders. In this regard the State and the Indigenous respondents rely on the decision of Collier J in Mann in which her Honour, citing Ashwin (on behalf of the Wutha People) v Western Australia and Others (No 4) (2019) 369 ALR 1 at [258] (Bromberg J), considered that: Section 84D of the Native Title Act does not assist where the defect in authorisation is substantive and not merely formal, such that if the defect were to be excused, it is likely that the interests of persons who may be native title holders will be severely prejudiced. 50 In all of the circumstances I accept the submissions made by the State and the Indigenous respondents that this is not an appropriate case for the discretion under s 84D of the Native Title to be exercised. 51 Contrary to submissions made by the applicant, I accept that the defect in authorisation is substantive. Having found that there is a defect in authorisation which means that the current applicant has not been appropriately authorised by the reconstituted claim group in accordance with s 251B of the Native Title Act, it necessarily follows that this is so. The defect which exists goes to the core of whether there has in fact been authorisation at all. 52 I am also not satisfied, for the reasons I have explained, that the evidence relied upon by the applicant in support of its submission that the vote as to resolutions 5 and 6 being unanimous and the applicant considering itself to be authorised, assists it in demonstrating that this is an appropriate case for an order to be made under s 84D of the Native Title Act. 53 Turning then to the question of prejudice, the applicant submits that there is no severe prejudice likely to be suffered by the Ross family. This is said to be because, in circumstances where the native title rights and interests have been agreed and the matter will proceed to a consent determination (following the determination of the Contested Apicals Separate Questions on which the Ross family takes no position), there is no possibility that the Ross family will be denied recognition as native title holders over the Bindal claim area: see Ashwin at [259] (Bromberg J). 54 The State and Indigenous respondents submit, however, that the reconstituted claim group and in particular the Ross family, is likely to suffer severe prejudice if the defect in authorisation were to be excused. I accept these submissions for the following reasons. 55 First, I accept that there is demonstrable prejudice to the Ross family in not having had an opportunity to vote for or elect the group which represents them in conducting the application. It is submitted, and I accept, that it is not relevant whether the reconstituted claim group would necessarily have voted not to authorise the current applicant, or that the Ross family may have been outvoted in any event. It is of the utmost importance that every member of a reconstituted claim group have an opportunity to resolve to authorise an applicant, regardless of whether or not any vote is ultimately in their favour. 56 Secondly, there is prejudice which may be suffered in the particular circumstances of this application by reason of the fact, that but for the Ross family descendants, the applicant group is constituted by a family member of each of the Apical ancestors listed in the claim group description. It was submitted, and I accept, that there is prejudice in the Ross family being excluded from representation in the applicant group in circumstances where this is the way the existing claim group has elected to prosecute its claim. Whatever the motivation for doing so, and whether or not it seeks to be represented, the Ross family is prejudiced by being the only descendant group now excluded from the applicant group. In this regard I note the question asked by Ms Ross at the end of the second meeting. 57 Thirdly, I do not accept the submission made by the applicant that there are no remaining issues on which the Bindal Applicant will need to decide upon on behalf of the claim group, or that this is a factor which indicates that the Ross family is unlikely to suffer severe prejudice despite not having authorised the current applicant, and being excluded from the applicant group. It is inevitable that as the claim proceeds toward consent determination (if this is what is to occur) there will be matters arising that require resolution, and which require instructions to be given to NQLC by the applicant on behalf of the reconstituted claim group. I am satisfied that there is a real possibility of severe prejudice being suffered by the Ross family should they be excluded from representation within the applicant if this is to mean they have no capacity to participate in those decisions which the applicant makes and communicates to its legal representatives. This, in effect, is the very prejudice which Bromberg J identified in Ashwin. 58 Further, it was submitted on behalf of the applicant that if the claim group is required to participate in another vote to authorise the applicant, and a position is in fact taken by the Ross family which is not supportive of the current applicant, there may be serious implications for the prosecution of the claim. I am not satisfied that this is a consideration weighing in favour of the exercise of the discretion under s 84D in this case. This submission may instead raise a concern that the lack of authorisation given by the Ross family is a matter of some significance in the context of the claim. 59 As to the applicant's submission that to require a further authorisation meeting would be to impose significant expenditure and time commitments on the part of the applicant, its legal representatives, and the administrative staff involved, there is insufficient evidence before the court to compel a conclusion that it is not in the interests of justice to require such a course when weighed against the prejudice likely to be suffered by the Ross family. In her second affidavit Ms Thomson deposes that a further authorisation meeting would not be able to be held any earlier than February 2025 and, based on the cost of the past authorisation meetings, may cost approximately $106,000. The precise reasons for such a lengthy delay and why the cost would be so high are not articulated by Ms Thomson and were unable to be advanced in submissions made on behalf of the applicant. 60 I note also that whilst the applicant submitted that if required to conduct a further authorisation meeting its attention and resources would be drawn away from its preparation from the Contested Apicals Separate Questions, the applicant did not go so far as to say this would be such an impost that it would cause it to seek an adjournment to the hearing of those questions listed to commence on 31 March 2025. All this being so I am not satisfied that the applicant's submissions establish that there is a real risk to the due prosecution of the claim if a further authorisation meeting is organised. 61 The only appropriate course, therefore, is for the applicant to hold a further authorisation meeting at which the reconstituted claim group would be given the opportunity to authorise the current applicant, or a different applicant, to prosecute the Bindal #2 Application. Notwithstanding the evidence of Ms Thomson filed in support of this application, such meeting ought to be organised and held as expeditiously as possible. 62 There will be orders substantially in accordance with the draft Minute submitted by the parties on 17 October 2024. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

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Cases Cited (12)