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[2005] FCAFC 211
Federal Court of Australia (Full Court)
2005-09-30
Dowsett J, Greenwood JJ
Original judgment source is linked above.
the applicant's submissions 27 The applicant's submissions can be briefly summarised. It was Mr Noble's contention that although the primary judge had alluded to s 251B(a) in the introductory part of his reasons for judgement, it was implicit from his Honour's reasons that he had ultimately relied upon s 251B(b) as the basis for ordering his removal. 28 The applicant submitted that s 251B(b) required evidence of the existence of a systemic decision-making process that had been agreed to, and adopted, before the ultimate decision was taken to support Mr Noble's removal. He submitted that the mere fact that the meeting had agreed to allow the elders to determine the matter, and accepted the elders' decision, did not demonstrate the existence of such a process. He called in aid, in particular, the observations of French J in Daniel v Western Australia (2002) 194 ALR 278, and the elaborate analysis of s 251B in that case, in support of his contention that the somewhat sparse reasoning of Dowsett J did not meet the requirements of that section. 29 Albeit in a somewhat different factual context, the applicant's submissions in this regard were essentially the same as those that he advanced in the appeal from Spender J's decision in the s 66B application arising out of the Mandingalbay Yidinji-Gunngandji claim.
the respondents' submissions 30 It was submitted on behalf of Mr Murgha and Mr Harris, that there was nothing in the language of s 251B(b) that supported any need for an anterior systemic process to have been agreed, or adopted, as a condition of the operation of the section. A court could infer that a process of decision-making of the type contemplated by the section had been agreed, or adopted, from the conduct of a meeting that voted on a resolution to have an applicant removed, particularly when it appeared that the vote was unanimous. In the present case, the elders had unanimously determined that Mr Noble should be removed, and their decision had been accepted, apparently without dissent. In those circumstances, the primary judge had been entitled to find, as he did, that the requirements of the section were met, and that removal under s 66B was warranted.
conclusion 31 The primary judge found, as a fact, that at the meeting on 23 November 2004, the Combined Gunngandji claim group decided to refer the possible removal of Mr Noble to the elders for their decision, and to abide by that decision. He noted that Mr Noble did not accept that the laws and customs of that group provided for that course to be followed. However, he rejected Mr Noble's complaint regarding that matter, basing his decision upon the reasoning of Spender J in the earlier decision in Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703. 32 His Honour found, as a fact, that the elders unanimously agreed that Mr Noble should be removed, and advised the meeting accordingly. He said, in terms, that he arrived at that conclusion in the face of a claim by one of the elders, Mr Garling, that he had given only conditional approval to Mr Noble's removal. Mr Garling apparently claimed that his agreement had been conditional upon his being appointed as an applicant. There does not appear to be any affidavit material in support of Mr Garling's claim, and Dowsett J correctly observed that affidavits sworn by others asserted to the contrary. 33 Ultimately, Dowsett J concluded that the evidence of "the other four deponents" should be preferred to that of Mr Garling. That finding was open to his Honour, as was the conclusion that there was probably room for misunderstanding as to what actually happened on the day in question. In any event, Mr Noble does not seek to challenge that finding, and nothing further need be said about it. 34 We are not persuaded that the primary judge erred in concluding that the requirements of s 251B(b) were met. We are unable to accept the submission that there must be a system of decision-making, separately agreed and adopted, before the members of the native title claim group can validly resolve to remove a person from the group that is "the applicant" in a native title determination application. 35 Dowsett J found that all of the requirements of s 66B had been satisfied. His conclusion was stated without elaboration, and without any detailed reasons for his findings of fact. However, that, of itself, does not evince any appealable error. We are not persuaded that any such error has been shown. Accordingly, leave to appeal will be refused. We add that if leave to appeal were not, in fact, required and there were an appeal as of right, the appeal would be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Weinberg & Greenwood.
Counsel for the Applicant: Mr DP O'Gorman and Mr JM Harper
Counsel for the First Respondent: Mr D Jackson QC
Solicitor for the First Respondent: North Queensland Law Council
Counsel for the Second Respondent: State of Queensland
Solicitor for the Second Respondent: Christine Fewings
Date of Hearing 22 September 2005
Date of Judgment 30 September 2005
Noble
Murgha
the background to the section 66b application 9 Mr Noble is a member of the native title claim group for the Combined Gunggangji claim. He is also a member of a sub-group of the Combined Gunggangji claim known as the George Christian clan. Two other clans, associated with Stewart Eric Harris and Leslie Vivian Murgha, are also sub-groups within the Combined Gunggangji claim. 10 The Gunggangji people are involved in both this claim, and in a broader claim involving two other indigenous groups. That broader claim is designated the Mandingalbay Yidinji-Gunngandji claim. In that matter, Spender J ordered that Mr Noble be removed as an applicant, pursuant to s 66B, on 16 December 2004. See Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703. His Honour's decision is the subject of an application for leave to appeal or, alternatively, an appeal to this Court that was heard at the same time as the present application. 11 The evidence that led Dowsett J to order Mr Noble's removal is in short compass. The Gunngandji claim has been running for many years. The State of Queensland has offered to settle that claim, together with the Mandingalbay Yidinji-Gunngandji claim, and both Mr Murgha and Mr Harris favour accepting that offer. Mr Noble, however, has a different view. He refuses to accept the offer, and declined to sign the necessary documentation. 12 Eventually, a meeting of the Combined Gunggandji claim group was held at Yarrabah on 23 November 2004 to resolve the impasse. The meeting was publicised. It was advertised in the newspapers, and notices were sent well in advance to all Gunggandji people. 13 The meeting was held at the Yarrabah community hall. Those who attended were provided with a proposed agenda, two proposed resolutions, and reasons why the meeting was necessary. Dr Gaye Sculthorpe, a member of the National Native Title Tribunal, and Mr Murgha, chaired the meeting. During the course of the meeting, s 251B of the Act was discussed. 14 According to an affidavit sworn by Mr Murgha on 4 March 2005, all those present at the meeting agreed that there was a decision-making process under Gunggandji traditional law and custom that was applicable to the decision whether Mr Noble should be removed. Mr Murgha described that process as "the elders meet and decide". He said that Gunggandji traditional law and custom required Gunggandji people to accept and respect decisions of the elders. 15 Mr Murgha said that when the resolutions set out in the agenda were put to the meeting "it was agreed by all present that the elders must decide the outcome". He said that though there was no agreement, at that stage, about Mr Noble's position, there was no dispute or disagreement that it must be up to the elders to make the decision. 16 According to Mr Murgha, all those who were not Gunggandji elders were then asked to leave the meeting. The people who remained were some nine individuals, all of whom were elders. He claimed that no one at the meeting raised any concerns about the process that was being followed. 17 Once the elders had discussed the matter, the other members of the group were called back in. Mr Noble and his family had left the meeting by that time. The elders then advised the meeting that Mr Noble should be removed as an applicant, and that Mr Murgha and Mr Harris should, in future, be "the applicant". Mr Murgha said that the meeting "accepted and respected" that decision. 18 Mr Murgha's evidence as to what occurred at the meeting was supported by the evidence of four other Gunggandji elders, Mr Edgar Harris, Mr Stewart Harris, Mr Robert Patterson, and Ms Alice Yeatman, all of whom had participated in the meeting of the elders on 23 November 2004. 19 Mr Murgha's evidence was further supported by the minutes of the meeting prepared by Dr Sculthorpe. The minutes record that the meeting was designated "Section 66B Meeting Yarrabah Community Hall 23 November 2004". They further record that Dr Sculthorpe provided the Gunggandji people present with an information kit, and went through a set of notes explaining the s 66B process. She explained that, under s 251B, proper authorisation was critical. 20 The minutes record that Mr Murgha asked those present whether there was a proper way for making the decision under traditional law and custom. Various people spoke, and confirmed that the elders had authority to speak for country, and must decide that issue. There was no opposition to that course. 21 It was on the basis of this evidence that the application under s 66B came before the primary judge.
(2002) 194 ALR 278