THE ISSUES
23 The principal questions raised on this application are whether Bissett-Ridgeway is no longer authorised by the claim group to make the application or deal with matters arising in relation to it and whether Ridgeway and Dates, in addition to Alexander Russell and Iris Russell, are authorised to replace her. In particular, the determination of this application depends on whether the removal and substitution were authorised at the meeting of 15 February 2001. There are no minutes which record the meeting and there is no written record made at the meeting of any resolutions passed. There are assertions in the affidavit evidence as to what occurred at the meeting, but these are largely nothing more than assertions of fact and law as to the effect of what was decided.
24 Ridgeway attached to his affidavit a notice which is relied on and which is to the effect that the Native Title Unit of NSWALC is assisting the members of the Worimi nation to progress the native title claim to Bagnalls Beach. This notice states that "[a] meeting to resolve the question of authorisation of the group and other matters" would be held on Thursday 15 February 2001 at the Soldiers Point Bowling Club. Dates, one of the applicants seeking to be substituted, states that it was his understanding that notice of the meeting was circulated by being published in the local press; namely, The Newcastle Herald, The Australian and The Koori Mail. He attaches to his affidavit a copy of an attendance sheet, which has the name, signature and address of those in attendance at the meeting and which asks the question "Are you Worimi" and records various answers "Yes" or "No". With the exception of about six responses, the answers of the more than forty people who attended the meeting are in the affirmative.
25 Tear sheets of several copies of the published notices were tendered. In one of them, in The Newcastle Herald, the notice appears under the heading "Positions Vacant" in alphabetical order. It appears after advertisements relating to welders. The notice refers to the Worimi Native Title meeting to take place on 15 February 2001 and, in substance, is identical to the notice attached to the affidavit of Ridgeway. The notice appearing in The Newcastle Herald is in similarly generalised terms and does not refer to the specific question posed at the meeting as to the authorisation of Ridgeway and Dates and their substitution in place of the applicant. There is also in evidence a notice in the Weekend Australian of 3-4 February 2001 which is substantially the same as that referred to earlier, and a notice in The Koori Mail. It is not apparent, from the extracts tendered, in which part of the papers the notices appeared, but I am prepared to assume that it was in the Public Notices section. It is not appropriate to approach these notices as if they were legal notices required under some statutory regime. Nevertheless, they do not specifically address the precise issue for consideration.
26 There is evidence from Mr Anderson ("Anderson"), who is the Chief Executive Officer of the Worimi Local Aboriginal Land Council, in support of the Notice of Motion to replace Bissett-Ridgeway. He gives evidence about playing with the Ridgeways as a boy at Soldiers Point and being told that Bagnalls Beach was a special place and that the area had always been reserved for Aboriginal people. He understood from stories he had heard that there were a number of Worimi families who lived in the Port Stephens area when he was growing up. He refers to seven families and these include the Dates and the Ridgeways, which I assume refers to the families of the applicants on the Motion. The material is generalised in relation to the affiliation of the two applicants with the land in question. Anderson says that the meeting of 15 February 2001 discussed the manner by which binding decisions would be made about the progress of the claim and about Worimi native title business generally. He says that consideration was given to the question of how to demonstrate that the replacement applicants were authorised to deal with matters arising in the application and that those present sought a way of doing this "consistent with the way in which Worimi people have always made decisions about Worimi business". That is to say, by reaching agreement and working together where there is a difference of opinion. He says it was agreed by those present that the native title decisions on behalf of "each family group from the original Worimi families" would be carried through each family's representatives.
27 Anderson says that each of the "original" Worimi families nominated a representative to indicate that each family authorised the applicants for substitution to replace Bisset-Ridgeway, and he names the seven representatives which include himself and Dates. A verbatim account of the process in precisely the same terms is to be found in the affidavit of Valerie Merrick ("Merrick") which was also filed in this matter.
28 The broad description of the claim group in the native title application itself indicates that not all members of the Worimi are claimants. The claim group is limited to those Worimi who are affiliated with the land which is the subject of the application. The attendance sheet filled out at the meeting simply records whether persons are Worimi or not. There is no indication of whether or not they are affiliated with the land in question or in what way they claim to be affiliated.
29 The removal of the respondent and substitution of the applicants under s 66B is, as Wilcox J observed in Moran, a course of action which calls for careful examination of the authorisation process to ensure that it has been implemented in a proper manner. Section 66B(2) makes it clear that the Court, before making an order under that provision, must be satisfied that Bissett-Ridgeway is no longer authorised. This means that the Court must be satisfied both that the meeting of 15 February 2001 was convened in such a way as to notify those members of the Worimi people affiliated with the subject land of the meeting, and that the meeting was properly conducted.
30 In Johnson, in the matter of Lawson v Lawson [2001] FCA 894, Stone J examined the decision making process said to have been adopted by the claim group in seeking to remove the respondents ("Lawsons") as applicants. In that case, it was not disputed that the persons seeking to replace the Lawsons were members of the claim group. The issue was whether the Lawsons were no longer authorised by the claim group and whether the applicants on the Notice of Motion had been authorised in their stead. The applicants relied on a statement describing the customary decision-making process of the claim group, particularly the authority of "family group headpersons" to "speak for the tribe". The Motion was dismissed on the basis that the applicants had failed to show that the decision to remove the Lawsons as applicants on the claim was made according to customary law, as set out in the "authorisation statement".
31 In this case, no evidence has been relied upon to submit that the 15 February meeting adopted a traditional or customary process of decision-making. The affidavits of Merrick and Anderson both state, in the same words, that the meeting,
"sought a way of [authorising the removal and replacement of Bissett-Ridgeway] … which was consistent with the way in which Worimi people have always made decisions about Worimi business. We prefer to reach agreement where possible about matters affecting us. We do not avoid disagreement but try to work together even where there is a difference of opinion."
32 This statement, in itself, is not sufficient to establish the adoption of customary or traditional processes at the 15 February meeting, and it was not relied upon by Ms Phillips to that effect.
33 It is important that proper processes consistent with Aboriginal laws, traditions and practice are implemented in making a decision to remove and replace an applicant in a native title claimant application. Section 251B(b), however, provides that where there is no traditional or customary decision-making process, the replacement applicants must be authorised through "a process of decision-making agreed to and adopted, by the persons in the native title claim group…." The question in this case, therefore, is whether those members of the Worimi affiliated with the community have, in fact, decided that Bissett-Ridgeway should no longer be authorised to make the application and to deal with matters arising in relation to it. The question is not simply whether some members of the community have reached such a decision.
34 It is not necessary on this application to decide whether the applicants on the Motion are members of the claim group affiliated with the land. The limited amount of evidence before me indicates that they are more likely than not within that description. On the material before me, however, I am not satisfied that the members of the claim group have been sufficiently identified to determine whether there has been a proper decision taken to authorise the Motion. Nor am I satisfied, given the limited and unsatisfactory notification of the meeting, that adequate notice was given of the specific purpose of the meeting or that those Worimi people affiliated with the land were put on notice of the holding of the meeting. In the case of the notice published in The Newcastle Herald, for example, it was not prominently placed in any Public Notice section, but rather appeared in the Positions Vacant column, which is not a location which would appear immediately relevant to those persons interested in looking at Public Notices. In relation to The Koori Herald, it is not apparent where and on which page the advertisement was located. In the case of The Australian, the notice was in the Public Notices section, but there is no evidence or indication that members of the Worimi claim group would be likely to read The Australian, or indeed The Newcastle Herald, on a daily basis. I am satisfied that there is substantial force in the submissions advanced for Bissett-Ridgeway in relation to the failure to adequately identify members of the claim group and the manner in which the meeting was convened.
35 In addition to the unsatisfactory nature of the identification of the claim group and the way in which the meeting was called, there are further considerations in relation to the decision-making process followed at the meeting. The process appears to have been agreed upon at the meeting on an ad hoc basis by those present as an expedient course to adopt for the purposes of that particular meeting. The evidence does not establish that the decision-making process of nominating representatives of seven families was in accordance with any accepted or pre-existing traditional method of decision-making. It has not been shown that the seven families who adopted the procedure at the meeting constitute all or even a significant proportion of the persons comprised in the claim group. Nor is there any documentary record of the meeting which would enable the Court to consider the precise terms of the decision actually made
36 Taking into account the above considerations, I am not satisfied that authorisation was given for the taking of the action to remove Bissett-Ridgeway and substitute the applicants. Accordingly, I dismiss the Motion. I make no order as to costs.
37 It should be pointed out that it is highly undesirable to have internal divisions which adversely affect the efficiently and timely advancement of the substantive claim which is made in the interests of all members of the claim group. I urge the parties to this application to take every step they reasonably can to attempt to conciliate their differences and move forward together on the merits of this claim.
38 I wish to record that both before and after the hearing there was delivered to my Chambers a great deal of material on behalf of the respondent to the motion. On its face, it appears to be genealogical in nature. I have not examined this material. In view of the conclusion I have reached as to the notification of the meeting and the uncertainty as to what were the terms of the decision reached, it is not appropriate or necessary, at this point, to embark on an examination of this detailed genealogical material.