KK (deceased) v State of Western Australia [2013] FCA 1234 | Case summary

background 8 The applicant in relation to each interlocutory application relies on the affidavit evidence of Mr Dante Mavec, a lawyer and legal officer employed by the Kimberley Land Council Aboriginal Corporation (KLC) who has the day to day carriage of each of the Nyul Nyul claims under the supervision of the KLC's principal legal officer, Ms Jacki Cole. Mr Mavec's affidavits were filed respectively in each proceeding on 5 November 2013. I generally accept their content. 9 On 30 October 2013, members of each of the Nyul Nyul and Nyul Nyul #2 claim groups (the same group of people in each case) met in Broome for the principal purpose of enabling the members of the claim groups to consider whether to discontinue the claims. The meeting was organised by the KLC. 10 Prior to the 30 October 2013 meeting, meetings of the descendants of particular Nyul Nyul apical ancestors, constituting 10 families in all, were conducted on various dates in October 2013. 11 I am satisfied from the detailed material contained in Mr Mavec's affidavit that the 30 October 2013 meeting was properly convened and ensured that a properly representative group of the wider claim group in respect of each of the claims was achieved. 12 On 30 October 2013, 74 members of the claim groups attended the meeting. 13 The first substantive matter addressed at the meeting was the decision-making process to be followed at the meeting. The following resolution was passed: The meeting confirms that it adopts the following decision-making process in relation to both the Nyul Nyul and Nyul Nyul #2 claims: • A matter for decision will be expressed in a written resolution. • A matter for decision will be discussed first by the family with the responsibility for the area affected. • Each family will have one vote, according to the following Nyul Nyul ancestors: Patrick Mouda, Narcis and brothers, Ringarr, Tjanganbor, Felix, Abraham, Victor, Leo Francis, Kandi, Alice Wright. 14 The resolution was passed unanimously by the Nyul Nyul people present at the meeting. 15 It is pertinent here to note that Mr Francis and other descendants of the Leo Francis family participated in the passing of this resolution. 16 I accept that the process of decision-making then adopted is one that has been used by the Nyul Nyul people at earlier meetings of the claim groups in 2011 and 2012. 17 I also accept that at those earlier meetings some decisions were not supported by all 10 families concerned but that some were supported by nine families, with the remaining family either opposed or not present at the meeting, but nonetheless the decisions were regarded by the claim group as a whole as duly passed. 18 I further accept that on these earlier occasions the Leo Francis family participated in the decision-making. 19 Following the resolution concerning the appropriate decision-making process for the meeting on 30 October 2013, the following resolution was put for decision, following a presentation made by Mr Mavec which included reference to legal advice: The Nyul Nyul and Nyul Nyul #2 claim groups instruct the Nyul Nyul and Nyul Nyul #2 applicants respectively, and the KLC on their behalf, to: • Seek leave from the Court to discontinue the Nyul Nyul and Nyul Nyul #2 claims, if the Bindunbur (Area C) claim is authorised; and • Discontinue the Nyul Nyul and Nyul Nyul #2 claims, if the Bindunbur (Area C) claim is ready to be filed in registrable form before l4 November 2013, or the future act matter relating to Petroleum Exploration Permit STP-EPA-0092 has been resolved. 20 When the vote was first taken, seven families were in favour and three against. Those families against included the family of Leo Francis. 21 It was announced by the independent facilitator of the meeting that with a vote of seven to three in favour of the resolution to discontinue the proceedings, the resolution was passed. 22 It was then suggested by Gregory Francis and his brother David Francis that a majority vote was not enough and that a unanimous consensus was required to pass a resolution. Subsequently, following discussion, Gregory Francis along with all other descendants of Leo Francis left the meeting. 23 After the Leo Francis family left the meeting there was further discussion and representatives of the two other families who had earlier voted against the resolution to discontinue the proceedings each indicated that they wished to change their family's vote and to support the resolution. It was then announced by the facilitator of the meeting that the resolution was now supported by a vote of nine families to one. 24 There was then some discussion about whether the discontinuance was able to be acted on in the light of Mr Francis' refusal to consent. In this regard, Mr Mavec asked the named applicants in the Nyul Nyul claim, all of whom were present at the meeting, to indicate whether they consented to the course of action set out in the resolution and they indicated they did consent. 25 He then asked the named applicants in the Nyul Nyul #2 claim who were present at the meeting to indicate whether they consented to the course of action set out in the resolution to give effect to the decision of the claim group and overcome Gregory Francis' refusal to consent. Those present included Alexander Dia, Josephine Phillips, Patrick Ishiguchi, Mary O'Reeri and Philomena Lewis. They all indicated that they consented to that course of action. Subsequently, Mr Mavec was advised by Alec Dann, Louie Bin Maarus, Lee Bevan and Deborah Sebastian that they also consented. Thus, only Gregory Francis of the named applicants on the Nyul Nyul #2 claim remained opposed to the proposed course of action. 26 The day following the meeting on 30 October 2013, on 31 October 2013, an authorisation meeting was held of Nyul Nyul people to authorise the proposed Bindunbur (Area C) claimant application: as to which see generally McKenzie v State of Western Australia [2013] FCA 1058. 27 That meeting resolved to authorise the making of this new claim, which is designed to cover the same area as that presently covered by the Nyul Nyul and Nyul Nyul #2 claims. A resolution to this effect was passed by consensus authorising the new claim, noting that the claim group would be the descendants of a number of named apical ancestors. It was also resolved that the Bindunbur Area A, Area B and Area C claims should be combined after they are all filed.

discontinuance of Nyul Nyul #2 claim 42 The interlocutory application by the "applicant" to discontinue the Nyul Nyul #2 claim would be amenable to disposition on precisely the same grounds that I have expressed above for granting leave to discontinue the Nyul Nyul claim, save for one consideration - that is, that the "applicant" includes Gregory Francis, who does not agree to the proposed course of action. The application to discontinue, in that sense, is supported by all the named applicants except for Mr Francis. The question is whether the Court nonetheless has the power to grant the application and, if so, whether it should do so. 43 There are various provisions in the NTA touching upon the authorising of the making of applications. Section 61 has already been referred to. It enables the making of a claimant application in a number of situations, including where the native title claim group authorises a named applicant or applicants to bring the proceeding. 44 In this regard, s 62A empowers the applicant (the named applicant or applicants) to deal with all matters arising under the NTA in relation to the claimant application thereafter. 45 To similar effect, s 251B provides that: 251B Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 46 This provision makes ground rules for the process by which the authorisation is effective in any case. I have already found above that the decision-making process adopted on 30 October 2013 produced a valid resolution when it came to the one family/one vote process adopted. 47 The first question is, where there are a number of named applicants, and one of them is not prepared to join in the proposed manner of dealing with the claimant application proposed by all of the others, whether the others can proceed to deal with the claimant application in any event on the basis that they, for the purposes of the NTA, nonetheless constitute the applicant. 48 In this context, it is also important to note the terms of s 66B NTA, which provides a mechanism for replacing an applicant. Amongst other circumstances in which this mechanism may be utilised, by s 66B(1)(a)(iii) where a person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it, one or more members of the claim group may apply to the Court for an order that the member or members jointly replace the current applicant. 49 The Court's power to replace an applicant under s 66B depends upon one of the relevant grounds being established, but also upon it being demonstrated that the member or members who bring the application are authorised by the claim group to make the application and to deal with matters arising in relation to it. 50 On behalf of the named applicants, apart from Mr Francis, it is submitted that the decision in Far West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733; (2012) 204 FCR 542 (Far West Coast Native Title Claim) supports the proposition that where a person is incapable, and unable or unwilling to act, generally speaking the balance of the applicant can continue to act without reconstituting a new applicant. 51 In that matter, Mr Miller, a Mirning person, applied to deconsolidate the Mirning native title claimant application from the Far West Coast native title claimant application, with the consequence there would again be overlapping native title claims in the relevant areas concerned. It was submitted that Mr Miller lacked standing to make any of his claims and there was no basis upon which the interlocutory orders sought could or should be made. 52 Mansfield J noted, at [30], that Mr Miller did not purport to represent the claim group which authorised the Far West Coast native title claim. Nor did he purport to represent the Mirning people as previously defined in the pre-consolidation claim of that group. He was not a person who had been authorised under s 251B to bring and conduct the then Mirning native title claim. 53 His Honour noted, at [31], that native title claims are necessarily conducted through representatives. The NTA sets out how and by whom native title proceedings (and steps in those proceedings) are to be taken: s 61. It identifies the applicant as the party which bears responsibility for the carriage of the native title claim: ss 61(1) and 251B. To the extent that individual members of a claim group, or the native title claim group itself, are dissatisfied with the conduct of the claim by the applicant, the NTA provides the avenue to replace the authorised applicant: s 66B. His Honour noted that that requires a withdrawal of the authorisation by the claim group to the then authorised applicant, and the appointment of a new person or persons to act as the applicant: s 66B or s 251B. 54 His Honour noted that neither the Far West Coast native title claim group, nor the former Mirning native title claim group, had authorised Mr Miller to bring the proceeding and he in fact did not assert to have been so authorised. 55 Thus, his Honour ultimately declined to make the deconsolidation order. 56 Mr Miller also sought an order requiring the applicant to produce evidence that the applicant was authorised to consolidate the two claims and to deal with the consolidated proceeding. 57 In the result, his Honour considered the powers of the Court under s 84D NTA to make relevant orders. 58 His Honour noted, at [44], that s 84D was inserted in the NTA in 2007 and its primary focus is in circumstances where the Court is asked to consider a native title application under s 61 where an authorisation is or may be defective under s 251B, if it is in the interests of justice to do so. 59 His Honour noted, however, that that is not the only circumstance in which s 84D can be utilised. 60 His Honour then said, at [46], of the wording of s 84D(1)(b) as follows: The wording of s 84D(1)(b) encompasses an order requiring a person authorised to make a claim under s 61 of the NT Act and who has dealt, or is dealing, with a matter arising in relation to that claim to produce evidence that he or she is authorised to do so. The power to deal with matters arising in relation to a claim is complementary to, and additional to, the fact of making the claim. It relates in terms to the second concept in the authorisation under s 251B, namely the dealing with matters arising in relation to the claim. That distinction is preserved in the words of s 84D(3)(a) and (b). Section 84D(4) also gives effect to the distinction between a defect in the authorisation on the one hand, or conduct which is challenged not because there was a defect in the authorisation but because the authorisation did not encompass the particular conduct dealing with the claim. In either case, the Court may make orders which progress or resolve the claim notwithstanding the problem. 61 His Honour further noted, at [47], that the fact that s 84D(1)(b) can operate where an applicant is authorised to bring a claim but is not then dealing with the claim in the manner authorised, is recognised in the explanatory memorandum relating to s 84D. 62 At [48], his Honour set out relevant terms from the explanatory memorandum to the amending Act that introduced s 84D as follows: 1.281 Section 61 sets out the requirements for making an application. A claimant application or a compensation application made by a compensation claim group must be made by a person or persons authorised to make the application (see s 61). The person or persons who are authorised to make the application are jointly 'the applicant'. Section 251B sets out the process for authorising the applicant to make an application and deal with matters arising in relation to the application. 1.282 Questions about the validity of the applicant's authorisation can arise at any stage during proceedings. For example, there may be doubts raised about whether the initial authorisation process authorising the making of the application was conducted properly. Even if the initial authorisation was valid, members of the claim group may suggest during proceedings that the person or persons who are the applicant have exceeded their authority in dealing with matters arising in relation to the application. Questions about authorisation may also arise if, for example, all of the persons who are the applicant die or become incapacitated or no longer wish to be the applicant. In circumstances where a deficiency in the authorisation of the claim is identified, it is unclear what steps the Court may take to address the problem. If the Court determines the application is not properly authorised, there is a question about whether the Court may continue to hear and determine the application. The inclusion of proposed section 84D seeks to clarify the Court's powers in relation to authorisation issues. (Emphasis in original.) 63 At [49], his Honour noted the explanatory memorandum discussion of s 84D(1), as follows: 1.283 Proposed paragraph 84D(1)(a) would enable the Court to make an order requiring a person who made an application under section 61 to produce evidence to the Court that he or she was authorised to make the application. This may be appropriate where questions have been raised about the initial meeting authorising the making of the claim. Similarly, paragraph 84D(1)(b) would enable the Court to require a person who is dealing with the matter arising in relation to an application (as the applicant) to produce evidence showing that he or she is authorised to deal with matters arising in relation to the application. Such an order may be appropriate where there is some doubt as to whether the applicant continues to be properly authorised to deal with matters in relation to the application. 64 Mansfield J then noted that a claim group may place conditions upon the manner in which the applicant deals with a matter arising in relation to a native title application, referring to Anderson v Queensland [2011] FCA 1158; (2011) 197 FCR 404 (Anderson v Queensland) at [60] (Collier J). 65 His Honour then discussed, at [52] and [53], circumstances in which, where an authorisation explicitly or implicitly includes conditions, how a number of persons collectively authorised to act as the applicant may continue to do so even though one or more of them chooses at a point in time to no longer to act in that capacity, or is unable to do so. In such circumstances his Honour noted that "generally speaking" the authorisation will remain effective for the remaining persons to continue with the claim. His Honour considered authorities such as Butchulla People v Queensland [2006] FCA 1063; (2006) 154 FCR 233 at [43] and [45] (Kiefel J) and Lennon v State of South Australia [2010] FCA 743 (Mansfield J) provided appropriate guidance in this respect. 66 But, at [54], his Honour noted that, subject to these matters just referred to, where the persons authorised under s 251B to be the applicant for the purpose of bringing and dealing with the claim cannot agree among themselves about how to do so, resort must be had to s 66B by the claim group. His Honour said that the authorisation, unless it expressly provides for (say) a majority vote among the persons who comprise the authorised applicant, requires all the authorised persons who are able and willing to act to agree upon how to bring and deal with the claim: see Tigan v Western Australia [2010] FCA 993; (2010) 188 FCR 533 (Gilmour J). 67 His Honour further noted, at [54], that in Anderson v Queensland, the detailed terms of the authorisation specifically allowed for decision-making by a majority so Collier J gave effect to that provision of the authorisation. 68 In the present case, as I apprehend it, the named applicants, apart from Mr Francis, contend that the authority conferred upon the "applicant" is conferred in terms to enable the authority of the applicant under s 62A to be exercised by them, in the circumstances of the authorisation governing the applicant's authority. The terms of the authority, they say, are to be found in the initial authorisation of the named applicants to commence proceeding WAD250/2012. 69 In that regard, Mr Mavec, in his affidavit referred to above, states that the Nyul Nyul #2 claim was lodged following an authorisation meeting held on 7 and 8 December 2011 in Broome. 70 I accept from that affidavit that a number of steps were taken to ensure that the meeting was representative of Nyul Nyul people. 71 It appears that 107 Nyul Nyul people attended the meeting on the first day and 103 on the second. 72 The minutes record, following an extensive discussion about the decision-making process that would be followed at the meeting, the following resolution was passed: Decision Making • A matter for decision will be discussed first by the family with the responsibility for the area affected. • A matter for decision will be expressed in a written resolution. • The nominated and recognised representatives from each of the family groups will vote on the resolution. • If the representative/s is not going to be present at the meeting they must send a proxy • If an absent family group has not sent a proxy the vote at the meeting will be binding 73 The family groups were asked to each make one nomination for a member of the Nyul Nyul #2 applicant as well as nominations to a "decision group" who were intended to be consulted where a full claim group meeting was not possible. Eight families made those nominations and the remaining two deferred the decision until the next day. 74 On the second day, the following resolution was put: Resolution The Nyul Nyul 2 claim group agree to the filing of a Native Title claim over the area surrounding the existing Nyul Nyul claim WAD 68 defined by the purple line on the map provided in the notice of the meeting. 75 That resolution found favour with nine families, with only one (the Tjanganbor family) against. 76 The resolution was declared passed. 77 A further resolution was then put and passed unanimously concerning the named applicants, who were stated to include Mr Francis. 78 The terms of the resolution, however, should be noted: Resolution The Nyul Nyul Native Title claim group confirms the people listed are authorised to be the applicant on the Nyul Nyul 2 claim and subject to further resolution of the claim group are authorised to do all things necessary and incidental to the making of the application subject to the board and restrictions. (Emphasis added.) 79 Mr Mavec deposes to the understanding all relevant persons had of the expression "subject to the board and restrictions" and states that from his review of the KLC file it is clear that the "board" is a reference to the whiteboard, copies of which appear in the extracts of the minutes, showing family groups, proposed applicants and voting, and "restrictions" is a reference to matters contained in a Powerpoint presentation which was displayed during the meeting. 80 He observes that the slides of the Powerpoint record a number of resolutions in relation to the filing of the Nyul Nyul #2 claim and the authorisation of the applicant for that claim, which are produced. 81 The KLC legal officer then present at that meeting asked whether everyone agreed "to pass the restrictions as resolution?". This was recorded in the minutes. The KLC officer concerned noted that all family groups have "authorised us to put in the application and you have authorised the applicants". 82 As a result of that resolution, Mr Francis, along with the other nine named applicants, affirmed an affidavit stating the Nyul Nyul #2 applicant was authorised to bring the claim through the decision-making process followed at the meeting. 83 The "restrictions" that the named applicants now say were part of that authorising resolution include those pages of the Powerpoint presentation dealing with "Selecting the Applicant". The first of these, slide 2, notes: It is agreed that the following people or such of them as are eligible to act as an applicant, and who are and remain willing and able to do so (the 'Applicant') are authorised to deal with all matters arising in relation to the Nyul Nyul #2 claim. (Emphasis in original.) 84 The third slide provides: It is agreed that in the event that one or more of the individuals authorised to be the Applicant dies or otherwise become incapable, unable or unwilling to continue to be a part of the Applicant, the remaining persons who comprise the Applicant may continue to act as the Applicant without the need to appoint a replacement. 85 A further slide then addressed the circumstances in which a named applicant is taken not to be willing and able to act in respect of the Nyul Nyul #2 claim, including where: The person has not followed the direction of the Nyul Nyul #2 claim group provided in a resolution of this meeting or any further meeting of the Nyul Nyul #2 claim group. 86 Further, the person is taken not to be willing and able to act where: The person has engaged in conduct which has caused the applicant as then constituted to Nyul Nyul #2ceed [exceed] the authority given to it by the Nyul Nyul #2 claim Group. 87 In this case, the evidence is clear, and I find, that the authority of the named applicants to act or refrain from acting in relation to the claim was subject to any direction from the claim group from time to time and that if any named applicant ignores the direction, the remaining named applicants are authorised to act without the involvement of the unwilling applicant. 88 On this basis, the applicant for present purposes is all the named applicants save for Mr Francis and the Court has power to allow discontinuance on the application of those named applicants. 89 For the reasons given in relation to the grant of leave to discontinue the Nyul Nyul claim, I see no good reason to withhold leave in this case and so leave should also be granted to discontinue the Nyul Nyul #2 claim. 90 A further or alternative submission is made on behalf of the named applicants that Mr Francis has effectively been removed as a named applicant for the purpose of the discontinuance leave application because he "has exceeded the authority given to him … by the claim group … to deal with matters arising in relation to [the claimant application]" for the purposes of s 66B(1)(a)(iv) NTA. 91 In Daniel v State of Western Australia [2002] FCA 1147; (2002) 194 ALR 278 at [16], French J referred to the procedure created by s 66B, as it was then in force. His Honour said: If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group. In a case where an applicant does not comply with such a resolution or direction, it is reasonable to say that the applicant has exceeded the authority given to him or her by acting in contravention of the claim group decision. The criterion of excess of authority as a condition of the power under s 66B may be less onerous than the criterion of cessation of authority. It does not require a separate decision-making process in order to establish it. It is also consistent with a beneficial construction of s 66B as a facultative provision directed to maintaining the ultimate authority of the native title claim group. 92 This dicta was accepted by Mansfield J in Far West Coast Native Title Claim at [58]. 93 In this case, the original authority given by the claim group to the named applicants was exceeded by Mr Francis when he failed to comply with the decision of the claim group to seek leave to discontinue the proceeding. 94 Thus, the named applicants, further or alternatively to the interlocutory application for leave to discontinue the proceeding, seek an order that the Court replace the applicant with the persons named in the interlocutory application as the interlocutory applicant under s 66B(1)(a)(iii) and s 66B(2) NTA and that the new applicant be granted leave to discontinue the proceeding. 95 In the circumstances, I consider s 66B(1)(a) NTA is satisfied in that: One or more members of the claim group (albeit that they are the remaining members of the applicant save for Mr Francis) apply for an order that they replace the current applicant. A person who is, jointly with other persons, namely Gregory Francis, the current applicant, "has exceeded the authority given to him … by the claim group to make the application and to deal with the matters arising in relation to it". 96 The remaining question is that raised by s 66B(1)(b), namely, whether the applicants are authorised by the claim group to make the application to replace Mr Francis and deal with the matters arising in relation to it. These named applicants submit that they are authorised by the claim group to make the application, being already authorised as the applicant to the claim and as the members of the applicant who remain able and willing to carry out their role consistent with the conditions of their authorisation and to deal with matters arising under it. 97 They point to the decision in Que Noy v Northern Territory of Australia [2007] FCA 188 at [8], [9], [11] and [15], including in relation to the fact that the interlocutory applicants need not be separately authorised by the claim group to bring the application under s 66B. 98 They point out that Mr Francis has been made aware of and has had the opportunity to appear and make submissions on the application. 99 They submit that exercising the power under s 66B would obviate the need to bring an expensive and inconvenient claim group meeting, a point adverted in Anderson v Queensland at [58]. 100 In my view, at the meeting of the claim group on 30 October 2013, the claim group either expressly or implicitly authorised any named applicants who were not opposed to the discontinuance of the Nyul Nyul #2 claim to deal with the discontinuance of the proceeding. Thus, s 66B(1)(b) is satisfied. 101 An order replacing Mr Francis pursuant to s 66B should be made. 102 I need not deal with further arguments put by the named applicants apart from Mr Francis that the Court may order discontinuance under R 9.08 Rules or under s 84D(3)(b) NTA.

KK (deceased) v State of Western Australia

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Judgment (12 paragraphs)

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Cases Cited (21)

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