Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales

Federal Court of Australia|2002-12-09|Before: Stone J

Introduction 1 Under s 61(2) of the Native Title Act 1993 (Cth) ("Act") a claimant application for the determination of native title may be made by persons authorised to make the application by the native title claim group. This proceeding concerns a claimant application filed on 8 October 1997 by Dorothy Mary Lawson and Phillip Mark Lawson ("Lawsons") on behalf of the Barkandji (Paakantyi) people ("Claim Group"). The application relates to a very large area of west and south-west New South Wales ("Claim Area"). A delegate of the Native Title Registrar accepted the Lawsons' application for registration on 29 August 1999. In accepting the application the delegate accepted that the Lawsons were authorised to bring the application in accordance with the traditional decision-making processes of the Claim Group as described in the authorisation statement attached to the application. The application was amended in 1999. Reference to the application in these reasons is a reference to the amended application.

Procedural History 2 The history of this application and the process by which the Lawsons were ultimately authorised is sufficiently described in my earlier judgment in this proceeding; see Johnson, in the matter of Lawson v Lawson [2001] FCA 894. That judgment concerned an unsuccessful attempt by two members of the Claim Group, Noel Johnson (an applicant in this proceeding) and Sheila Kirby, to remove the Lawsons as applicants in this proceeding. In making that application, which I dismissed on 13 July 2001, the applicants had relied on the process of authorisation on which the Lawsons had relied in making the claimant application. That authorisation process is described in my earlier reasons, [2001] FCA 894 at [7] to [13]. In brief, it was a process of decision-making under traditional laws and customs of the persons in the Claim Group involving the elders, who are the heads of individual extended families and the "headpersons" of larger family groups comprising a number of individual extended families. In rejecting the application I accepted that the Lawsons had lost the confidence of some very important members of the Claim Group however, there was not sufficient evidence to show that their authority had been revoked or that the relevant Claim Group members had been authorised to replace them in according with the traditional process of decision-making. In other words the applicants on the notice of motion had not made out the case that they had sought to make. 3 Following that judgment, which was given on 13 July 2001, there have been attempts to resolve the difficulties within the Claim Group. On 25 July 2001 I referred the application to the National Native Title Tribunal ("NNTT") for mediation under s 86B of the Act. The NNTT was requested to mediate only in relation to the resolution of any dispute within the Claim Group and to provide a report in relation to that issue within four months. The NNTT report dated 26 November 2001 expressed the view that progress was being made and recommended that mediation continue for a further period of four months limited, as before, to resolution of issues within the Claim Group. A subsequent report, dated 3 April 2002, was less optimistic. In that report, the NNTT member indicated that there were a number of serious disputes within the group, however the only dispute that presently concerns the Court involves dissatisfaction with the Lawsons as applicants representing the Claim Group. The NNTT member stated that a clear outcome of a mediation meeting held in Broken Hill on 17 and 18 March 2002 was that the participants wanted an authorisation meeting convened by the New South Wales Native Title Services Limited ("NTS") where the Claim Group could seek to resolve the issue of authorisation. The NNTT report recommended that the Court order such a meeting. 4 NTS is a corporate body that has replaced the New South Wales Aboriginal Land Council as a party to this proceeding. On 18 April 2002, on the application of NTS, I made a number of orders including: "1. [NTS] convene and chair a meeting at Broken Hill on 5 July 2002 and, by appropriate notification, including comprehensive advertising, invite to the meeting: (a) all members of the native title claim group including the [Lawsons]; and (b) any other Aboriginal person claiming to hold native title rights and interests within the claim area." 5 At the same time the Court noted that: "2. [NTS] (subject to its budgetary constraints) has undertaken to meet the reasonable travelling and accommodation costs of attendees. 3. The Agenda for the meeting will include the following: (a) appropriate decision-making processes for the purpose of dealing with matters arising from the native title determination application; (b) appropriate definition of the native title claim group; (c) confirmation or replacement of named applicants in the proceedings; (d) dimensions of the claim area including whether the claim should be split into two or more claims; (e) any other amendments to the native title determination of the application; and (f) representation in this proceeding for the native title claim group." 6 In addition I directed that: "5. By 31 July 2002 [NTS] provide to the Court, with copies to the applicants, their representative in this proceeding and the parties in attendance at the directions hearing on 17 April 2002, a written report including details of the persons who attended the meeting and the resolutions and decisions of the meeting, together with a copy of the minutes of the meeting."

These orders, requested by NTS, are somewhat unusual and initially I was not inclined to make them. I was persuaded ultimately by the dismal history of this matter, which at the time, showed no sign of progressing, and the argument that with the imprimatur of the Court, the meeting would be more likely to attract the attention and attendance of the members of the Claim Group. 7 An issue that gave me some concern was the failure of the Lawsons and their representative, Mr Dengate to attend the directions hearing at which the request for these orders was made. Mr Dengate, who is not based in Sydney, had asked to attend by telephone because of the financial constraints affecting him and the Lawsons. He has attended directions hearings by telephone on a number of previous occasions. Those occasions invariably have been marked by difficulties with Mr Dengate's mobile phone reception or with his battery or both. In the circumstances it is difficult for him to make any useful contribution or to avoid, albeit inadvertently, disrupting the proceedings. Because the request was made only a very short time before the directions hearing it was not possible to arrange any satisfactory substitute method of attending. For this reason I declined to allow him to attend other than in person. Nevertheless, despite neither the Lawsons nor Mr Dengate being in attendance, I was convinced that the resolution of internal disputes must be within the interests of all members of the Claim Group including the Lawsons and therefore agreed to make the orders.

Broken Hill Meeting of 5 July 2002 8 The meeting was convened by NTS pursuant to the Court orders set out in [4]-[6] above. Mr Paul Hayes, the Principal Legal officer of NTS, provided affidavit evidence as to the steps taken to convene the meeting and advertise the proposed date and venue. Details of the proposed meeting, including an invitation in accordance with the Court orders, were extensively advertised in local newspapers within the Claim Area. The advertisements included a map of the Claim Area and set out the agenda for the meeting. The advertisements also advised the availability of limited travel and accommodation assistance for those residing outside the Broken Hill area and gave contact details for NTS. Information sessions, convened by NTS, for the purpose of discussing the proposed agenda, answering questions and discussing the logistics of attendance, were held at Dareton, Wilcannia, Menindee and Broken Hill. Letters advising the details of the meeting were sent to approximately 130 people and to Local Aboriginal Land Councils within the Claim Area. In addition personal letters were sent to both the Lawsons as well as to Mr Dengate. 9 According to Mr Hayes about 140 persons attended the meeting, which, in his experience, was an unusually large number for such a meeting. A list of attendees was compiled by NTS officers from signed attendance sheets, mileage forms and meal allowance forms. The list was verified by NNTT officers who attended. The Lawsons did not attend although it was not in contention that they were invited and knew the meeting was to occur. Their absence was noted with regret. Mr Hayes attached very detailed minutes of the meeting to his affidavit. It is not clear who took the minutes however Mr Hayes, who was present at the meeting, confirmed his belief in their accuracy. The minutes are also in accord with a report of the meeting provided by NTS and with the record of decisions and resolutions prepared by two representatives of the NNTT who were in attendance. 10 The meeting was chaired by Mr Hayes in conjunction with Mr Smiley Johnson who is said to be a Barkandji man and a deputy CEO of the Indigenous Land Corporation. It appears from the minutes that this was acceptable to the attendees. The minutes show that a number of issues pertinent to the claim were discussed at the meeting and votes were recorded in relation to those issues. The first item on the agenda concerned the appropriate decision-making process for native title matters. The meeting resolved that attendance at the meeting was sufficient to allow decisions to be made by the Claim Group and that decisions should be by a show of hands. The minutes also record that the motion to revoke the authority of the Lawsons to act as applicants on the claim and that of Mr Dengate to act as representative for the applicants was approved. The minutes record all of these decisions as being "unanimous". The minutes also show that the meeting approved eight persons to replace the Lawsons as applicants on the claim. These eight were nominated by a working group of twenty-three named persons and then approved by the meeting by applause rather than by a formal vote.

Application to remove the Lawsons as applicants 11 On 8 August 2002 NTS filed a notice of motion seeking to amend the application in this proceeding so as to give effect to a number of decisions made at the meeting. One of the amendments sought was the replacement of the Lawsons by the eight persons nominated at the meeting. In the course of argument about this notice of motion it was submitted that not all of the eight persons were members of the Claim Group as presently defined in the claimant application. On 28 October I ordered that notice of motion to be stood over pending an application under s 66B of the Act. 12 On 1 November 2002, five named persons ("Applicants") filed a notice of motion under s 66B of the Act seeking to replace the Lawsons as applicants in this proceeding. The five applicants on this notice of motion are Ray Lawson, Noel Johnson, Mary Ann Marton, Jennifer Whyman and Patricia Johnson. All of these persons were included in the group of eight nominated at the meeting on 5 July. They allege that the Claim Group has revoked the Lawsons' authority to represent it and has authorised them to represent it as applicants in this proceeding.

Authorisation of applicants in a claimant application 13 Section 61(1)(1) of the Act provides that an application for the determination of native title may be made by a person or persons authorised by all the persons "who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed". This group is referred to as the "native title claim group". A proviso to the subsection requires that the person or persons so authorised must be included in the native title claim group. Only the person (or persons) so authorised can be the "applicant" in the application for determination, all of the other members of the native title claim group being specifically excluded; s 61(2)(c) and (d). 14 Section 251B of the Act provides how the requirement that "all" the people in the native title claim group "authorise" the applicant in a native title claim is to be met: "For the purposes of this Act, all the persons in a native title claim group … authorise a person or persons to make a native title determination 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, must be complied with in relation to authorising things of that kind - the persons in the native title 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 … 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 …in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind." (original emphasis)

While s 251B does not expressly refer to the revocation of authority I agree with Mansfield J that by inference it is applicable to such a circumstance; Ward v Northern Territory of Australia [2002] FCA 1477 ("Ward No 2") at [10]. 15 Section 66B provides for the replacement of the applicant in a claimant application. The Court may make the order if it is satisfied that the following grounds, set out in s 66B(1), are established: "(1) One or more members of the native title claim group … in relation to a claimant application … may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it." 16 The conditions laid down by s 66B have been discussed by French J in two recent cases, Daniel v State of Western Australia [2002] FCA 1147 and Holborow v State of Western Australia [2002] FCA 1428. In Daniel his Honour stated, at [17], that persons bringing applications under s 66B must satisfy the following conditions: "1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it."

I respectfully agree with his Honour and with the principles that he expounded as appropriate for consideration in connection with applications under s 66B; see also Ward No 2 at [5]-[15] per Mansfield J.

Issues and submissions 17 It is not difficult to deal with requirements 1, 2 and 4: the history of this matter as outlined in these reasons sufficiently indicates that there is a claimant application and the Lawsons have not contended otherwise. The description of the Claim Group as set out in the amended application is as follows: "SCHEDULE A - Identification of the native title claim group The "Pooncarie" Barkandji (Paakantyi) membership is defined by non-unilineal descent from the apical ancestors as follows: Dan McGregor Manfred Tommy Manfred Mary Cuthero Jack Cuthero Harry Sarah Cabbage Susan Webster Harry Naanya and those persons who, through marriage and/or adoption into the group, identify themselves as being "Pooncarie" Barkandji (Paakantyi) and are accepted by the entire group according to traditional laws and customs. Traditional law and custom dictates that the headpersons of the family groups must approve and endorse any persons who, through marriage and/or adoption, claim membership to the claim group." 18 Mr Dengate on behalf of the Lawsons conceded that the Applicants are all members of the native title claim group as described. There is no allegation that the Lawsons have exceeded their authority. The issues in contention are whether the Lawsons' authorisation has been revoked and whether the Applicants have been authorised in their stead. As previously mentioned the Applicants claim that both of these steps were effected at the meeting on 5 July 2002. 19 As mentioned previously (see [1] above) the Lawsons' authorisation to make the application in this proceeding was accepted as having been conferred by traditional decision-making processes. That being so, the Lawsons submit that the alternative decision-making process referred to in s 251B(b) cannot apply. They support this submission with reference to the opening words of s 251B(b), "where there is no such process". I suspect that this submission is made in mistaken reliance on the Lawsons' success in opposing the earlier motion to replace them. However, as I pointed out in my reasons for that decision, the applicants on that notice of motion claimed that the process of decision-making under traditional laws and customs that had been used to authorise the Lawsons to make the claimant application had been also used to revoke that authority and vest it in them. They failed because there was not sufficient evidence to support this claim. 20 The claims made in the notice of motion that is presently before me are supported on a quite different basis. The Applicants have not directly challenged the traditional decision-making process that was accepted as the basis of the Lawsons' authority. They contend, however, that this process does not extend to making decisions of the kind now required in respect of the claimant application. As I understand this submission it is that the traditional decision-making process has broken down and is unable to cope with the decisions required in respect of a native title application. As counsel for the Applicants expressed, experience since the claimant application was first made shows that the traditional decision-making process has been "unable to sustain" the Claim Group which therefore has had resort to the more direct approach of having the members of the Claim Group directly vote on the issues relevant to this application. The Applicants submit that, in accordance with s 251B(b) and by virtue of the decisions made at the meeting on 5 July 2002, they have been authorised by the "native title claim group" to deal with matters in relation to the application.

Consideration 21 Unfortunately it is not uncommon for internal disputes in a native title claim group to interfere with the progress of a native title claim; Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 ("Moran"), Ward v Northern Territory [2002] FCA 171 ("Ward No 1") and Holborow v State of Western Australia [2002] 1428 ("Holborow") are all examples. I am satisfied that there is no relevant traditional decision-making process capable of dealing with the decisions that need to be made to progress this claim and resolve the problem of who is to represent the Claim Group. In my earlier reasons for decision (see [2] above) I referred to the Lawsons having lost the confidence of important elders. This has created difficulties that have interfered with the progress of this matter. These difficulties have not been overcome despite extensive attempts at mediation. 22 The means by which the meeting of 5 July was advertised and notified to the Claim Group are described in [8] above. From the evidence provided by Mr Hayes, I am satisfied that all reasonable steps were taken to advise members of the Claim Group of the proposed meeting. The Lawsons have not challenged this evidence and they have not contended that members of the Claim Group were not aware of the proposed meeting. They have not provided any evidence as to the non-attendance of Claim Group members other than the Lawsons themselves. I do not consider the non-attendance of the Lawsons sufficient to invalidate the decision-making processes adopted by the meeting. In my view, the history of difficulties in this matter supports the Applicants' claims that the Claim Group does not have a traditional decision-making process capable of progressing the application. Further support is found in the fact that the persons at the meeting on 5 July accepted a decision-making process voted on at the meeting; Holborow at [50]. It remains to decide if that process has resulted in authorisation in accordance with s 251B 23 The question of authorisation was considered by Wilcox J in Moran. Neither Ms Moran, the person who originated the claim nor Mr Allen, the person challenging her right to continue as applicant, was able to demonstrate authorisation by the claimant group either when the claim was initiated or at a later stage. As a consequence Wilcox J dismissed the proceedings under Order 20 rule 2 of the Federal Court Rules on the basis that they were "foredoomed to fail". Commenting on the importance of proper authorisation his Honour said at [49], "In order to establish proper authorisation, Ms Moran would have had to identify by name all the people within the claimant group, or a collective body able to speak for the group as a whole. If she had done either of these things, Mr Allen could have explored, and, possibly, ultimately demonstrated, the extent of his support as a replacement applicant. However, because the membership and/or leadership of the group was not properly defined, he has been unable to do this. The Court is left in the position of finding that Ms Moran and Mr Allen each apparently enjoy a measure of support from people who claim to fall within the group, but being unable to say which (if either) of them is entitled to act for the group as a whole." 24 Wilcox J's observations must be considered in the context of a native title application that appears to have been doomed from the start. Certainly his Honour was not presented with sufficient information to enable him to resolve the dispute between Ms Moran and Mr Allen. I do not, however, understand him to be holding that the Act requires that in all claims every member of the claimant group must be able to be identified by name. Such a view would be inconsistent with s 190B(3) which provides that before accepting the claim for registration, the Registrar must be satisfied that: "(a) the persons in the native title claim group are named in the application; or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group."

Similarly I do not understand his Honour to be expressing the view that for the purposes of s 66B a decision to revoke the authorisation of the current applicant and authorise another member or members of the claim group requires that every person in the claim group (presumably excluding the current applicant) is in agreement. 25 As indicated above, s 251B specifies what is required to establish that "all the persons in a native title claim … authorise a person or persons to make a native title determination application" (original emphasis). The effect of the section is to give the word "all" a more limited meaning than it might otherwise have. If there is no traditional process of decision-making "in relation to authorising things of that kind" then, in accordance with s 251B(b), authorisation in accordance with a process of decision-making "agreed to and adopted, by the persons in the native title claim group" is sufficient. In s 251B(b) there is no mention of "all" and, in my opinion the subsection does not require that "all" the members of the relevant claim Group must be involved in making the decision. Still less does it require that the vote be a unanimous vote of every member. Adopting that approach would enable an individual member or members to veto any decision and may make it extremely difficult if not impossible for a claimant group to progress a claim. In my opinion the Act does not require such a technical and pedantic approach. It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process 26 In Ward No 1 evidence was presented concerning a number of meetings that were said to have revoked the authorisation of the applicants in the claim and authorised substitutes. O'Loughlin J held that the information was insufficient for this purpose and, at [24], identified the following deficiencies: "The information concerning the meeting that was held on 27 January 2002 … is wholly deficient. There is no information about that meeting. Who convened it and why was it convened? To whom was notice given and why was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded?" His Honour observed that it was not necessary that these questions be answered in any formal way but held at [25] that "the substance of those questions must be addressed". 27 I am satisfied that the substance of those questions has been addressed in this case. The evidence shows that all reasonable steps were taken to advise members of the Claim Group of the proposed meeting. The Lawsons have not challenged this evidence and they have not contended that members of the Claim Group were not aware of the proposed meeting. In the absence of evidence to the contrary I am prepared to accept that those who did not participate chose not to be involved in the decision-making of the Claim Group. On the evidence of what took place at the meeting, which was also not challenged, I accept that persons at the meeting on 5 July 2002 adopted a process of decision-making that revoked the Lawsons' authorisation and authorised the Applicants in their stead. Mr Dengate submitted that some of the people at the meeting who voted on the resolutions put to the meeting were not shown to be members of the Claim Group. While this may be so, it does not affect the validity of the decisions. Given that, as I have found, this well-attended meeting was appropriately advertised and that there was no dissent from any of the resolutions that were passed, it can safely be assumed that the resolutions approved by meeting have been approved by the Claim Group. As there was no dissent from the motions put to the meeting on 5 July, it is not necessary for me to decide here whether a decision is valid if it is made in the face of some dissent. 28 In an ideal situation one might wish for more precise identification of the Claim Group members and information on what proportion of the membership actually attended the meeting. I do not think, however, that the Act requires decisions of native title claim groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised. 29 I should make one further point. In accepting that the Lawsons' authorisation to pursue this claim has been revoked, it is not necessary for me to reach any conclusion or to express any opinion as to their prior conduct of the claim. It not necessary for me to form any view as to whether or not they have been fairly or unfairly treated by the Claim Group and I expressly do not do so. Part 3 Division 1 of the Act is concerned with the practicalities of the managing applications made under the Act. It recognises that an application must be made with the authority of the native title claim group. Section 66B is directed to the practical necessity of ensuring that the applicants have and continue to have that authority. 30 In Holborow, French J, when making an order under s 66B, said at [52]: "I regard the process by which this point has been reached as less than completely satisfactory. Nevertheless, the conditions required to be satisfied under s 66B are satisfied and, in my opinion, in the exercise of my discretion the order sought ought to be made." Those sentiments can be echoed here. I am satisfied that the requirements of s 66 B have been met and for that reason will order that the five persons named as applicants in the notice of motion replace the Lawsons as applicants in this proceeding. 31 It is also necessary that the application be amended by removal of the names of the Lawsons from the title to the action and the substitution of those of the Applicants. It may be appropriate that I now order this to be done. I am, however, conscious of the notice of motion, referred to in [11] above, which has been stood over pending the Court's determination of the application under s 66B. It may well be that at least some of the amendments proposed in that notice of motion can now be made without difficulty and that it would be convenient for this to be done at the same time as the Applicants' names are to be included. I will hear Counsel as to the appropriate form of orders. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Counsel for Ray Lawson, Noel Johnson, Mary Ann Marton, Jennifer Whyman and Patricia Johnson: Ms S Phillips

Solicitor for the Ray Lawson, Noel Johnson, Mary Ann Marton, Jennifer Whyman and Patricia Johnson: Mr P Hayes, NSW Native Title Services Limited

Representative for the applicants: Mr M Dengate

Solicitor for the respondent: Crown Solicitor New South Wales Solicitor for the New South Wales Farmers' Association:

Date of Hearing: 26 November 2002

Date of Judgment: 9 December 2002

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