Findings
150 Relevant principles referable to applications pursuant to s 84C of the Native Title Act are well settled. The Court should only exercise powers of strike out under s 84C in a very clear case - namely, where the claim as expressed is untenable upon the version of the evidence favourable to the applicant, and generally without any weighing up of conflicting evidence or of the inferences which might be drawn therefrom.
151 Plainly, whether the claim is untenable within the context of that section is a question which can only be resolved by careful consideration of the material before the Court in each particular case. The onus of demonstrating that the claim is untenable is on the applicant for strike out.
152 The case of the Gamilaraay in the present case is fundamentally that the Bigambul #2 Claim is untenable because it was not properly authorised. As Mansfield J explained in Walker at [26], failure of the authorisation process to comply with the requirements of the Native Title Act is fatal to the success of the application.
153 Specifically, the relevant non-compliance in respect of the authorisation process in respect of the Bigambul #2 Claim, as identified by the Gamillaraay People, concerned:
Whether those who purported to authorise the Bigambul #2 Claim at the Bigambul Authorisation Meeting were merely a subset of the Bigambul People's native title claim group for the purposes of ss 61 and 251B of the Native Title Act; and
Whether the notification of the Bigambul Authorisation Meeting was invalid for the purposes of ss 61 and 251B of the Native Title Act because of the manner in which it was advertised, such that not all Bigambul People were given a reasonable opportunity to decide whether to attend.
154 The Bigambul People as identified in Schedule A of the Form 1 in the Bigambul #2 Claim are i as follows:
The claim group are the biological descendants of
(i) Nellie Yumbeina;
(ii) Queen Susan of Welltown;
(iii) Jack Noble;
(iv) Sally Murray;
(v) Susan, Mother of Duncan Daniels; or
(vi) Jack and James Armstrong.
who identify and are recognised as Bigambul People in accordance with the traditional laws and customs acknowledged observed by them.
155 This description accords with the description of the Bigambul People in Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 and Doctor on behalf of the Bigambul People v State of Queensland [2017] FCA 716 (the Bigambul Determinations). It is not in dispute.
156 This description can, of course be compared with that entitling membership of BNTAC. The Rule Book of BNTAC was annexed to the affidavit of Sheree Sharma filed 4 November 2022. Materially the Rule Book provided:
5.2.1 Who can apply to become a member (eligibility requirements for membership)
A person who is eligible to apply for membership must be an individual who is:
(a) at least 18 years old; and
(b) a Bigambul person, described in Schedule 2.
(c) The person primarily identifies as a Bigambul person.
157 Schedule 2 of the Rule Book provides that the "Bigambul Descent Groups":
Are the descendants of the following deceased Aboriginal people:
1. Nellie Yumbeina;
2. Queen Susan of Welltown ;
3. Jack Noble and Sally Murray;
4. Susan mother of Duncan Daniels;
5. Jack Armstrong; and;
6. James Armstrong
158 The expression, "primarily identify as [a] Bigambul person" is defined in Schedule 1 of the BNTAC Rules:
means an Aboriginal person who:(a) identifies as a member of the Bigambul People in preference to any right or entitlement they may have as a member any other Aboriginal or Torres Strait Islander Group by virtue of being entitled to exercise native title rights and interests outside Bigambul Country;(b) is accepted by at least one descendant from a majority of Bigambul descent groups; and (c) provides evidence sufficient to satisfy the Board of Directors that they meet the criteria set out in (a) and (b) above.
159 In Schedule 3 of the BNTAC Rule Book, an application for membership form has the option for the applicant to tick that they, "principally identify as a Bigambul person even though [they] may be also be eligible to be a member of another aboriginal native title group".
160 Was the notification of the Bigambul Authorisation Meeting limited to persons who principally identified as Bigambul People and either were members of or satisfied the membership criteria of BNTAC (and were thus a subset of the Bigambul People), as distinct from all members of the Bigambul People? And if so - were all members of the Bigambul People given a reasonable opportunity to participate in the authorisation meeting?
161 There is authority that the Native Title Act does not require decisions of native title groups to be scrutinized in an overly technical and pedantic way, but rather in a practical manner: Lawson on behalf of the "Pooncarie" Barkandji (Paakantyi) People v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [28]; Gomeroi People v Attorney General of NSW [2017] FCA 1464 at [54]; Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2022] FCA 65 at [24]. As Rangiah J explained in Gomeroi at [118], it may be practically impossible for every member of the claim group to be notified of an authorisation meeting. There is also no requirement that there be sufficient persons in attendance at an authorisation meeting who are representative of all the apicals in a claim: Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406 at [66].
162 It is sufficient if a decision is made once members of the claim group are given every reasonable opportunity to participate in the decision making process: Stone J in Lawson at [25].
163 Turning now to the material before the Court, and noting that that evidence should be scrutinized in a practical manner, the position appears to be as follows.
164 The Bigambul #2 Applicant concedes that the notice of the authorisation meeting was only posted to the members of BNTAC, being Bigambul People who primarily identified as Bigambul.
165 The Bigambul #2 Applicant disputed that the BNTAC Rules restricted eligibility to a subset of Bigambul People. In submissions to the Court in this case, the Bigambul #2 Applicant contended that the traditional laws acknowledged and traditional customs observed by the Bigambul People restricted recognition to those persons who primarily identified as Bigambul. In particular, reliance was placed on an anthropological report of Dr Anna Kenny dated 16 January 2015 (the Anthropology Report).
166 However the evidence is overwhelming that the limitation on membership of BNTAC in its Rules does not reflect the description of Bigambul People, and that in fact, that membership description represents a subset of the Bigambul People. To the extent that the notification of the meeting was limited to members of BNTAC, it did not give all Bigambul People every reasonable opportunity to participate in the decision making process.
167 I am satisfied that the evidence is clear, such that it does not require a trial for resolution. I am satisfied that, relying on the evidence which I have carefully considered, there are defects in the case which cannot be remedied: Walker at [17].
168 First, the evidence of the Mr Leonard Saunders, Mr Ralph Rigby, Mr Gregory Saunders, Ms Danielle Saunders, Ms Kristina Saunders, Mr Stephen Saunders, Ms Deidre Flick and Ms Amanda Lang was that they all identified as Bigambul, being descended from Bigambul apical ancestors, and that they were told by older family members that notwithstanding their membership of another native title group, they were also Bigambul.
169 In contrast, of the four members of the Bigambul People who gave evidence for the Bigambul #2 Applicant in this proceeding, only the Chief Executive Officer of BNTAC, Mr Justin Saunders, gave evidence that he was taught that identification as a Bigambul Person required primary identification as a Bigambul Person.
170 Second, that identification as a Bigambul Person is primarily referable to biological descent from Bigambul apical ancestors, and recognition and identification as a Bigambul person, is consistent not only with Schedule A to the Form 1 of the Bigambul #2 Applicant in this proceeding, but earlier Bigambul Determinations by this Court.
171 Third, the Bigambul #2 Applicant relied on the Anthropology Report as evidence that the traditional laws and customs of the Bigambul People required primary identification as a Bigambul person. In particular the Bigambul #2 Applicant submitted:
19. Chapter 4 of the Kenny Report is relevant to the issue of who are the Bigambul Native Title holders. At paragraph 316 of the Kenny Report she concludes:
"Group membership usually derives not only from descent but also from participation in group activities, appropriate behaviour and political acumen of individuals. It appears that those individuals who participate in the networks of relatedness and group politics are the members of the Bigambul land holding group. A person who, for example, discovers on the basis of recent genealogical research, from written sources, that they have a distant ancestor cannot on that basis alone claim membership of the group without meeting resistance. See, for instance, Sutton (1998:62-4)".
20. And at paragraph 318, Dr Kenny summarises her findings of the factors that determine membership of the Bigambul land holding group.
"In sum, Bigambul people are the descendants of acknowledged apical ancestors Nellie Yumbeina, James and Jack Armstrong, Jack Noble and Sally Murray, Susan of Welltown and Duncan Daniells. Under their laws and customs, all Bigambul people hold rights and interests in all of their traditional lands. The exercise of rights and interests are influenced by the following factors that together with descent ideology limit the size of the group: a) active participation in the networks of relatedness and group affairs of the land holding group; b) individual choice of group affiliation and identity; c) knowledge; d) long-term residence near or on Bigambul country; and e) birthplace. Without a descent based claim, these other relevant criteria are not sufficient to claim group membership" (emphasis added).
21. It is therefore incorrect to assert that descent from a named apical ancestor (while necessary) is sufficient to determine the members of the Bigambul land holding group.
22. In paragraphs 286 to 289 of Chapter 4 under the heading Singularity of Identity?, Dr Kenny also refers to the circumstance where some, but not all, Bigambul People claim membership of neighbouring group such as the Gamilaraay or Kamilaroi/Gomeroi people. The relevant paragraphs of the Kenny Report are reproduced below:
"Singularity of identity?
286. Under a system of cognatic descent it is possible for a person to be a member of more than one group at a time. In parts of southern Queensland it appears that there is a tendency for people to identify with or emphasise links to one group only. I have found this to be the case among Kooma people (Kenny 2011) and Kwok has made similar observations among the Gunggari (Kwok 2010: 99). This development may be seen as an adaptation to the contemporary situation in which particular groups compete for resources perceived to be available through native title involvement and cultural heritage work.
287. George Hopkins, for example, maintains that one can only belong to one group and one claim today. He says that 'you come down the strongest bloodline; knowledge is important'. He belongs to his mother's and mother's mother's group because he grew-up on their country and acquired knowledge about it from his maternal relatives (George Hopkins on Tuesday, 19 April 2011). Roy Watson Junior also follows only one line. His main place is centred around Bungunya which he takes through his father. He identifies as Bigambul because it is the country he knows and feels close to (Roy Watson Junior, Thursday, 18 September 2014). Len 'Sam' Saunders chooses to claim through his father and father's mother, because he was very close to his father and his father's kinfolk; he learnt from them and says that he 'learnt from father, worked with father, knows that country from father' (Leonard 'Sam' Saunders, Saturday, 1 November 2014). Knowledge of country is one of the important factors that determines why people choose to identify with one group rather than with another when they have descent based connections to more than one country.
288. There are other people associated with the Bigambul application with the view that it is possible to claim rights to more than one country. Audrey Flick, a descendant of Susan of Welltown, said that one can acknowledge both sides, not just mother's line, as long as it is through a bloodline. She identifies as Kamilaroi through her mother, Rosie Weatherall, and as Bigambul through her father's mother, Celia Clevens. (Audrey Flick on Friday, 18 February 2011).
289. In this context Max Webster says that one can be part of both parents' countries, if it is for the right reason, namely if 'you know grandparents and their countries'. He maintains that 'You have to keep it apart, have to be able to separate between different countries; you cannot bring Bigambul into Gomeroi/Kamilaroi (same thing) and vice versa - you have to know those countries' (Max Webster, Friday, 31 October 2014)."
(emphasis in original)
172 This material extracted from the Anthropology Report simply recognised that one witness, namely George Hopkins, maintained that "one can only belong to one group and one claim". Dr Kenny's observation was that while other members of the Bigambul People chose to follow one line of descent, "other people" associated with the Bigambul application took the view that it was possible to claim rights to more than one country. Reference to Chapter 4 of the Anthropology Report suggests no dispute about this issue beyond the view of one person, Mr George Hopkins.
173 Indeed, in the executive summary of the Anthropology Report, Dr Kenny observed:
4. The Bigambul group is composed of families who seek recognition as the native titleholders for their traditional lands. They comprise the descendants of acknowledged Bigambul ancestors Nellie Yumbeina, James and Jack Armstrong (sons of unnamed 'full blood Aboriginal woman of Winton Station near Goondiwindi'), Jack Noble, Sally Murray, Queen Susan of Welltown and Duncan Daniels (son of Susan).
5. Today the main way to claim membership of the landed group is by cognatic descent from an acknowledged ancestor. According to the contemporary normative system relating to land the members of the Bigambul group are recruited by cognatic descent and choose to identify as Bigambul. It is through these laws and customs that they maintain their physical, social and spiritual connection to the land. Under this system they own land and have responsibilities in relation to it.
6. The limited ethnography relevant to the research area on territorial organisation suggests that at contact Bigambul people were divided into smaller landholding subgroups and derived their rights to country mainly through patrilineal descent. Totemic associations were mainly inherited through fathers and mother's brothers (at initiation ceremonies), though matritotemic affiliation may have played a role in conferring some kind of interests (not land ownership rights), and place of birth may have given rise to some kind of personal right to a place. While the rights to land were mainly gained through patrilineal descent, there seem to have been other ways of negotiating rights through other kin relations.
(emphasis added)
174 The Anthropology Report noted that identification as a Bigambul person derived not only from descent, but also from active participation in the networks of relatedness and group affairs of the group, affiliation and identify, knowledge, residence and birthplace. None of these attributes require primacy of identification as a Bigambul person.
175 As Finn J observed in McKenzie at [26]:
Nonetheless, it may require extensive argument and may be necessary to adduce evidence to establish the futility of a case: General Steel Industries Inc v Commission for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130; Bodney v Bropho at [51]-[52].
(See also Mansfield J in Walker at [17]).
176 In my view the Anthropology Report, as evidence in this proceeding, does not support the contention of the Bigambul #2 Applicant concerning the primacy of identification as a Bigambul person.
177 To the extent that only persons who primarily identified as Bigambul - being a subset of the Bigambul People - were notified of the Bigambul Authorisation Meeting, the notification was inadequate.
178 The Bigambul #2 Applicant contended that public notice of the Bigambul Authorisation Meeting was effected by publication on the "Buy Search Sell" website on 1 April 2022, and in the Courier Mail newspaper on 30 March 2022. I have already summarised the reasons for the absence of publication of the notice of the meeting in the Koori Mail.
179 The evidence of Bigambul People who gave evidence for the Gamilaraay Applicant, and who were not personally contacted by BNTAC, was that they were not aware of the Bigambul Authorisation Meeting, or of the notifications on the "Buy Search Sell" website or in the Courier Mail.
180 It is not in dispute that only 20 people attended the Bigambul Authorisation Meeting. Again, the fact that only a relatively small number of persons attended the meeting does not of itself mean that the authorisation of the meeting was flawed. The low number in attendance does, however, give credence to the fact that the notification of the meeting was inadequate, and that members of the Bigambul People were not given a reasonable opportunity to attend.
181 Mr Preston for the Gamilaraay Applicant submitted at the hearing, a notice published on the "Buy Search Sell" website may have been seen by members of the Bigambul People, "if you happen to be looking for a second-hand lawn mower that day" (transcript 31 January 2023 page 12 lines 12-13). In my view this submission has merit. The "Buy Search Sell" describes itself as a "marketplace, both in print and online". Prima facie, as a "marketplace", it does not appear to be a website where one might find a notification of an authorisation meeting of a native title claim group, notwithstanding that one of the many links on the home page of the website is "notices".
182 No evidence was given by any member of the Bigambul People, as a witness for either the Gamilaraay Applicant or the Bigambul #2 Applicant, that they had seen the notice of the Bigambul Authorisation Meeting, on either the "Buy Search Sell" website or in the Courier Mail.
183 The Bigambul #2 Applicant relied on evidence that the notification of the authorisation meeting was not published in the Koori Mail because of flooding in the Lismore region at the time, and further that the office of the Koori Mail was in Lismore. Mr Hardie also gave evidence that the date of re-opening of the Koori Mail office was too proximate in time to the date of the Bigambul Authorisation Meeting to warrant publication of a notification of the meeting in that newspaper.
184 This evidence may explain why publication of the notification in the Koori Mail was not adopted (compare Mansfield J in Walker at [80]). However this explanation does not validate an authorisation meeting which was not otherwise adequately publicised. As Mr Preston for the Gamilaraay Applicant submitted:
On this occasion, there's one notice in the Courier Mail and an online version of its classifieds and, as we understand Mr Saunders' contentions, we just had to do it that way because everything was being affected by COVID and flooding. If your Honour reads the references to the two claims there, there's a map which is a - a crown plan and lot map for a property at Toralin. Your Honour will see this meeting had to be postponed due to flooding and COVID restrictions. If you go down to the second 10 claim, which is the one with which we are concerned, there's no reference to the meeting having to be postponed because of flooding and COVID.
And so we would say all the more reason to have taken the opportunity to fully and extensively advertise it. There was no reason not to have done it according to Hoyle, so to speak. That's not to say that in certain circumstances, the Courier Mail may be the only one you need to because if all the claimants live in the CBD, and all, you know, read the Courier Mail, it might be great. But if they live out at Moree and Toowoomba and they read the Moree Champion and things like that, it might be appropriate to advertise in a local newspaper or on the radio or something like that. So that's the point we make there.
(transcript 31 January 2023 page 18 lines 5-21)
185 The evidence before the Court establishes unequivocally that the Bigambul #2 Applicant has not been authorised by the Bigambul native title claim group (Bodney at [52], Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [43]). The Bigambul People were not given a reasonable opportunity to participate in the Bigambul Authorisation Meeting. The authorisation requirements of ss 61 and 251B of the Native Title Act have not been satisfied. No amendment to the Bigambul #2 Claim can cure this defect. Failure to comply with the requirement for authorisation is fatal to the tenability of the Bigambul #2 Claim.
186 The Bigambul #2 Applicant has contended that, if the Court were to find that the Bigambul Peoples' current native title determination application was not properly authorised, it is nonetheless appropriate for the Court to exercise its discretion in accordance with s 84D of the Native Title Act to hear and determine the application. Relevantly s 84D(4) provides:
(4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a) hear and determine the application, despite the defect in authorisation; or
(b) make such other orders as the court considers appropriate.
187 Section 84D was examined by White J in Miller, where his Honour observed:
[93] Section 84D has been considered in a number of decisions of the Court, including Akiba v Queensland [2010] FCA 643, (2010) 204 FCR 1 at [913]-[918]; Ashwin on behalf of the Wuth People v State of Western Australia (No 2) [2010] FCA 1472, (2010) 191 FCR 549 at [21]; and Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978 at [44]-[46]. Those decisions indicate that the matters which may be relevant to the exercise of the discretion under s 84D(4) may include the expense and inconvenience likely to be suffered by the party if the application is struck out and the applicant required to commence the process of bringing the application afresh; the public interest in litigation in the Court being conducted justly and as quickly, inexpensively and efficiently as possible; and the potential for delay in the determination of the existence or otherwise of the claimed native title rights. It may accepted that the desirability of the Court being seen to encourage proper compliance by prospective claimants with the requirements of the NT Act is also a relevant consideration.
188 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: Ashwin (on behalf of the Wutha People) v Western Australia and Others (No 4) (2019) 369 ALR 1 at [258]. In any event however, in the present case, unlike in Miller, no subsequent meeting of the Bigambul claim group was held demonstrating that a newly commenced claim in the same terms would have been authorised in any event. Indeed, the evidence of all Bigambul witnesses for the Gamilaraay Applicant was that they would have opposed the authorisation of the Bigambul #2 Claim had they had been given the opportunity to vote at that meeting.
189 It is not in dispute that the Bigambul #2 Claim failed the registration test in the National Native Title Tribunal. As much was conceded by Mr Hardie at the hearing. To that extent, noting that the present parameters of the Bigambul #2 Claim may in any event require reconsideration by the claim group and its lawyers, I am unable to identify any expense or inconvenience which is likely to be suffered by the Bigambul #2 Applicant which could enliven the Court's discretion under s 84D of the Native Title Act.
190 In my view the proceedings should be struck out pursuant to s 84C of the Native Title Act.