Lennon v State of South Australia [2010] FCA 743 | Case summary

CONSIDERATION 13 The 1998 Amending Act introduced those provisions which required authorisation to make an application for the determination of native title under s 61, and provided for the authorisation of a person or persons under s 251B. It also introduced s 62A which, assuming an appropriate authorisation under s 251B, statutorily authorised the applicant to deal with all matters arising under the NT Act in relation to the application. It also introduced s 66B which then was in the following terms: Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on 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. Court order (2) The Court may make the order if it is satisfied that the grounds are established. Registrar of Federal Court to notify Native Title Registrar (3) If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant. Register to be updated (4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order. 14 At that time s 64(5) provided: (5) If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant: (a) that the new applicant is authorised by the other persons included in the native title claim group, or the compensation claim group, to deal with matters arising in relation to the application; and (b) stating the basis on which the new applicant is authorised as mentioned in paragraph (a). 15 As noted above, under that statutory regime it was decided that, if a person who was one of the authorised persons constituting the applicant in a native title application deceased, the name of that person can be removed as a "party" without the necessity of a further authorisation under s 251B. The power to do so was found in O 6 r 9 of the Federal Court Rules. Order 6 rule 9 of the Federal Court Rules provides: If a person: (a) has been improperly or unnecessarily joined as a party to a proceeding; or (b) has ceased to be a proper or necessary party to a proceeding; the Court may order that the person cease to be a party and make orders for the further conduct of the proceeding. That power, as discussed in those cases, extended to remove the name of one of the persons constituting the applicant not simply when that person deceased, but also when an authorised person became unwilling or unable to act as authorised by the native title claim group. 16 The 2007 Amending Act deleted s 64(5). It also substituted a new s 66B(1) in the following terms: Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant: (i) the person consents to his or her replacement or removal; (ii) the person has died or become incapacitated; (iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; (iv) the person 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. Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application. 17 Since the 2007 Amending Act, some cases have addressed problems similar to, but not identical with, the present issue. 18 In Sambo and Others v Western Australia and Others [2008] 172 FCR 271 the Court was confronted with an applicant, comprising seven authorised persons, who were apparently unable collectively to make decisions as to the progress of the claim. Five of the authorised persons applied to have the remaining two of them removed as parties because (it was said) they had failed to respond to the legal representatives engaged on behalf of the applicant to provide instructions or had failed to provide evidence on matters relating to connection. There had been no meeting of the native title claim group to address those difficulties among the authorised persons, by reason of the expense, the delay, and the lack of resources to do so. The Court decided that s 66B of the NT Act provided the only means to permit any changes to be made to the composition of the applicant. It ruled that O 6 r 9 of the Federal Court Rules was not an available recourse to do so. 19 After referring to the authorities referred to in [2] above, and the 2007 Amending Act, Siopis J said at [27]-[30]: The Explanatory Memorandum in respect of the 2007 amendments referred to the proposed s 66B and to the proposed repeal of s 64(5) of the Act and commented that after s 64(5) was repealed, the "proposed section 66B would be the only mechanism through which any changes to the applicant could be made". The 2007 amendments and the comments in the Explanatory Memorandum that the proposed s 66B was to be the only mechanism through which any changes to the applicant could be made, are inconsistent with the observations of Kiefel J in Chapman that "it should not be inferred that it was intended that s 66B(1) be the only means" of making changes to the applicant. Further, the 2007 amendments are inconsistent with the premise that underlies the decision in each of Butchulla People, Chapman and Doolan, namely, that the authorisation given by the claim group is personal to each member of the applicant, rather than being given to the particular group of persons comprising the applicant collectively. This is evident, for example, from the inclusion of the death of a person comprising the applicant in the circumstances listed in s 66B(1)(a). When s 66B(1)(a)(i) is read with s 66B(1)(b) it is clear that even when a person comprising the applicant has died, it is Parliament's intention that there is to be an authorisation by the claim group of the replacement applicant, whether or not the deceased person is replaced by another person as part of the applicant. It follows that since the passing of the 2007 amendments there is only one means whereby any changes can be made to the composition of the applicant and that is through s 66B of the Act. The decisions in the cases of Butchulla People; Chapman and Doolan have been superseded by the amendments. Accordingly, I reject the applicant movers' contention that it is open to the Court to remove Ms Wyatt and Mr Cooper as members of the applicant by reference to O 6, r 9 of the Rules on the basis that each is not a proper or necessary party. [citations omitted] 20 That decision is not directly on point, as it concerned an application by some authorised persons that other authorised persons who (they said) were no longer willing to participate in making decisions about the progress of the claim be removed as parties. However, the remarks of Siopis J indicate that his Honour considered that there was little or no difference from a case where an authorised person had deceased. It may well be that, in such a case as confronted his Honour, the appropriate avenue is for the claim group to reconsider the authorisation process. There may have been a genuine issue among the authorised persons as to the best way forward. In any event, the case did not directly throw up what the position was when an authorised person died. 21 Coyne v State of Western Australia [2009] FCA 533 incidentally concerned such a circumstance. It primarily concerned the validity of a decision of the claim group of 1 December 2007 (after the commencement of the 2007 Amending Act) authorising some only of the then authorised persons under s 251B to thereafter continue to act as the applicant to deal with matters relating to the application. The newly authorised persons had applied under the then s 66B to be made a party to the application as the applicant. The issue was as to the validity of the later authorisation. Siopis J found that the authorisation was valid. A further issue arose as, subsequent to the later authorisation, two of the newly authorised persons had died before being named as parties to the application. The authorisation given under s 251B, however, was in terms which were wide enough to enable the remaining authorised persons to be joined as parties and to constitute the applicant. The resolution relevantly authorised the named persons "… or such of them as are eligible to act as an applicant and who remain willing and able to act in respect of the application in the future" to make and deal with matters arising in relation to the application. The authorisation itself therefore encompassed and accommodated that circumstance. His Honour followed a decision of French J (as he then was) in Anderson v State of Western Australia [2007] FCA 1733 where a similar circumstance had arisen in relation to a similarly worded authorisation, albeit under the statutory regime which existed prior to the 2007 Amending Act. 22 In my view, s 66B does not in its terms cover the field so that it is the only means by which a native title claim group can prosecute an application once one of a number of persons who are authorised under s 251B to make and deal with the application has deceased. 23 I have referred above at [11] to the practical consequence of the contrary construction. They are obviously antithetical to the purposes of the NT Act. That is so, both at an aspirational level having regard to the Preamble to the NT Act and at the practical level of how the NT Act provides for Indigenous persons to make and maintain a claim under s 61. 24 The Preamble is clear. The NT Act is to ensure that Indigenous people "… receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire." 25 In Doolan, Spender J reflected that general approach in his Honour's determination. His Honour referred, inter alia, to the observations of McHugh J in Commonwealth v Yarmirr (2001) 208 CLR 1 at [124]-[125] as providing an appropriate way to construe the provisions of the NT Act. It is also necessary to keep in mind that, in the Second Reading Speech on the Native Title Bill 1993, the then Prime Minister, Mr Keating, saw Mabo [No 2] as giving Australians the opportunity to rectify the consequences of past injustices. The Act should therefore be read as having a legislative purpose of wiping away or at all events ameliorating the "national legacy of unutterable shame" that in the eyes of many has haunted the nation for decades. Where the Act is capable of construction that would ameliorate any of those injustices or redeem that legacy, it should be given that construction. If the purpose of the Act was to recognise native title in any case where Aboriginal or Torres Strait Island people still possessed rights and interests in respect of land or water under their traditional laws or customs, the duty of the courts would be to ensure that that purpose was achieved. That would be so even if it meant giving a strained construction to or reading words into the Act. In an extrajudicial speech, Lord Diplock once said that "if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed". 26 When considering the terms of s 66B(1), a construction is available which reflects that approach and does not involve the potential frustration of the application for a lengthy period, with the consequential waste of resources both to the native title representative body and to members of the claim group. In the first place, s 66B(1) was, and is, permissive. It enables, but does not compel, a member of the claim group authorised under s 251B to apply to "replace" the current applicant. To adopt the approach of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the use of the word "may" can (but need not necessarily) be seen as indicating a legislative purpose that s 66B(1) provides a means, but not the only means in every circumstance, by which the persons as parties constituting the applicant may be changed: see eg per McHugh, Gummow, Kirby and Hayne JJ at [93]. Section 66B is in its terms empowering of the native title claim group. It is a power which clearly should exist. The claim group may wish to change the persons it authorises to deal with an application in any one or more of the circumstances referred to in subclauses (a)(i) to (iv). Sections 61(1) and 251B enable the claim group to decide who it wishes to authorise to make and deal with matters relating to its application. Section 66B(1) enables the claim group, if it wishes, to make changes to the authorised persons from time to time in the circumstances provided. It would in my view, be inconsistent with the autonomy of the claim group that - at considerable expense and delay and inconvenience - it should, in the event of one or more of the events set out in subclauses (a)(i) to (iv) of s 66B(1), be obliged to proceed under that provision. There is no apparent reason why the legislature would wish to impose upon a claim group such an obligation. An example may make the point. If (say) there were 20 authorised persons and one died and the claim group did not wish to change the remaining authorised persons, why would the legislature insist upon a further authorisation meeting? Or if, of those 20 authorised persons, one becomes incapacitated? The claim group has the power to enliven s 66B(1), but why should it have the obligation to do so in those circumstances, when s 62A of the NT Act or O 6 r 9 of the Federal Court Rules provides a ready and economical means of that change being made? 27 The changes effected to s 66B(1) by the 2007 Amending Act are generally not indicative of a significant legislative policy change from the position previously obtaining. Section 66B(1), until subclause (a), is unchanged. Subclause (a) as previously expressed was introduced with the word "either" and the descriptive words in placita (i) and (ii) - now placita (iii) and (iv) - were previously "the current applicant". They have been changed. Subclause (a) now refers to one or more of the placita applying to a person who is, either alone or jointly with another person, the current applicant, and placita (iii) and (iv) now refer to the person rather than to "the current applicant". There is a clear reason for that change. As explained in [5]-[7] above, s 61(2) makes the authorised person or persons the applicant. The amendments to s 66B(1) effected by the 2007 Amending Act more accurately reflect that position. As s 66B(1) was previously expressed, it appeared to treat all the authorised persons as one person without expressly recognising that the applicant, by reason of s 61(2), may comprise one or more persons, being all those authorised under s 251B by the claim group, and that those authorised persons were not converted by statute into some separate legal entity. 28 The additions to ss 66B(1) by placita (i) and (ii) of subclause (a), in that context, can also be seen as recognising that matter explicitly and responding to it. They thus enable the claim group to act when it is faced with an authorised person having died or having become incapacitated or being unwilling to act and consenting to an authorised replacement. Placita (iii) and (iv) also enable the existing authorised persons to act on behalf of the claim group where the claim group has removed the authorisation of a previously authorised person or where an authorised person is exceeding the authority given to that person. The amendments therefore address more clearly the fact that the applicant may comprise a number of authorised persons and they empower the claim group to act in relation to that individual person if it wishes to do so. The repeal of s 66(5), in that light, is in my view merely facultative of that right on the part of the claim group. 29 The Commonwealth has pointed out that there will be cases in which it is important not only that persons are individually authorised as part of the applicant, but also that the particular group of persons is collectively authorised to act on behalf of the claim group. There may be sectional interests within the claim group whose interests are balanced by the particular combination of authorised persons. It is clear that such circumstances may arise. That is why s 66B empowers the claim group in its terms and in the circumstances it specifies. Que Noy v Northern Territory of Australia [2007] FCA 1888 provides an example of a claim group doing so. It would not be consistent with the clear objectives of the NT Act, on the other hand, to impose the s 66B procedure on the claim group where there were no such considerations. One might ask rhetorically why a native title claim group should have removed from it the capacity to make decisions for itself about whether, in particular circumstances, such as the death of an authorised person, it wishes to enliven s 66B or whether it is content to allow the remaining authorised applicants to continue to act in accordance with their authorisation? 30 In the light of that submission of the Commonwealth, it is also relevant to note two further matters about s 66B. The Court must be satisfied that the ground relied upon is established, and then the Court has power, but no obligation, to make an order. An order under s 66B is discretionary: s 66B(2). The Court will therefore have the opportunity to ensure that any interested party is aware of, and has the opportunity to appear and make submissions on, the application. That is equally true of an application under O 6 r 9 of the Federal Court Rules. Consequently, in the event that a circumstance such as that posited by the Commonwealth arose, and for some reason the claim group did not choose to react to the death of one of the authorised persons "representing" a sectional interest, that circumstance could be brought to the attention of the Court and its significance determined. The second matter is related to the first. It is almost invariably the case that an application under s 61 will be accompanied by a certification under s 203BE(2) and (4) of the NT Act by the relevant native title representative body. In any event, the relevant native title representative body must be served with any application under s 66(3)(a)(iii) and it is then entitled to become a party to the proceeding: s 84(2). Consequently, on any application to remove a party as one of the persons constituting the applicant either by the surviving authorised persons or under O 6 r 9 of the Federal Court Rules, the Court would have the benefit of submissions from the representative body if there was any feature of it which required to be brought to the attention of the Court. An application by the surviving authorised persons, whether under the NT Act s 62A or under O 6 r 9, supported by the representative body (as this is) would indicate that no such considerations as the Commonwealth posited on a theoretical basis are in play. If such considerations were real ones, the Court could and would have regard to them in deciding whether to make the order sought. 31 Finally, in the particular circumstances of the death of one or more of a number of authorised persons, in my view - even assuming that there is ambiguity in the terms of s 66B as to its scope of operation - to the extent that it is useful to determine the purpose of the NT Act, in particular s 66B(1) in its present terms - I do not consider that the Explanatory Memorandum to the Bill which resulted in the 2007 Amending Act supports the construction of s 66B contended for by the Commonwealth. The Explanatory Memorandum at 1.261-1.263 refers to the then existing s 66B as enabling the member or members of the native title claim group to apply to the Court to replace the applicant. It notes that the amendment proposed "would expand the scope of s 66B to provide for other circumstances in which the native title claim group may seek to replace the applicant". It uses the permissive word "may" at least twice. It is little more than a paraphrase of the provision itself. It is clearly expressed as providing an extended opportunity to, rather than imposing a confining obligation upon, a claim group to replace a person or persons who are authorised to act as an applicant. The Explanatory Memorandum at 1.266 also contains the passage referred to by Siopis J in Sambo quoted above at [19], but in its context as the final sentence relevant to the proposed amendment, it represents a conclusion inconsistent with the preceding test, and in my view inconsistent with the wording of the amended s 66B(1). 32 Accordingly, to the extent that Siopis J in Sambo, by his Honour's remarks address the present circumstances, I respectfully disagree with them. 33 In my judgment, the present application can be made by the surviving authorised persons in accordance with s 62A of the NT Act or under O 6 r 9 of the Federal Court Rules to remove from the names of the parties the names of the two deceased persons. 34 There is a further, and independent, reason why I consider the present application is competent. I have referred above to the terms of the variation on the six persons presently constituting the applicant. In my view, in the absence of any evidence to suggest to the contrary, that authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of them. Although it is not express, I consider that the authorisation in its terms is one for them, or so many of them, as continue to be living and able to discharge their representative function to do so. The authorisation contemplated not simply the making of the application, but dealing with matters in relation to it, which (as experience has shown) may extend over a quite lengthy period of time. Accordingly, as Spender J did in Doolan (see in particular at [57]-[59]), I consider that the authorisation by the native title claim group under s 251B impliedly authorised those persons to act as the applicant to the extent that each of them was willing and able to do so. Indeed, it is not necessary to go beyond implying, as I do, that the authorisation was to each of them, and that in the case of the death of one or more of them, to the surviving authorised persons. The approach demonstrated in the decisions of French J in Anderson and Siopis J in Coyne should be adopted in any event. 35 In my judgment, the surviving authorised persons are therefore acting in accordance with their authorisation in dealing with matters arising in relation to the application in applying to have those authorised members who are now deceased removed as parties to the application. Order 6 rule 9 of the Federal Court Rules may alternatively be used to support the application, as was the case in Butchulla and Chapman. 36 The evidence indicates that the native title claim group comprises some 19 family groups who are descendants of certain apical ancestors. The families did not claim identity as subgroups within the wider claim group, based on a matter such as particular dialect, or geographical association with any particular part of the claim area, or in some other way. The members of the claim group have established the Antakirinja Matu-Yankunytjatjara Aboriginal Corporation. It is intended to be the prescribed body corporate specified in the anticipated consent determination. Its membership is restricted to members of the claim group. In the event of a proposed consent determination, that body will inevitably be aware of it. That body, and its members are aware of the deaths of two of the authorised persons. It is absolutely clear that the making of a consent determination by the Court will only occur with the knowledge and support of the claim group generally. The application is supported by SANTS. It is supported by the State. I am satisfied that there are no circumstances which might militate against making the order sought. 37 Accordingly, I propose to order that the names of the parties to the proceeding as applicant be amended by deleting the names of two deceased persons, who for the purposes of the order I describe as Kunmanara Lennon deceased and Kunmanara Smith Snr deceased. The parties who constitute the application for the purposes of the ongoing dealing with matters arising in relation to the application will be William Lennon Snr, Ian Crombie, David Brown and Jean Wood. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Lennon v State of South Australia

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