Rose & Ors v New South Wales Native Title Services Ltd & Anor [2005] VSCA 157

(a) the relevant Aboriginal groups agreed in the formation and the term of the trusts;

(b) the trusts are not incompatible with what was contemplated by the Agreements; and

(c) NAC was capable of representing the relevant Aboriginal groups and was an appropriate trustee of the trusts.

Such errors, it was said, led his Honour to conclude that there were no material irregularities in the making of the impugned order and that, in the circumstances, it should not be set aside. After some discussion, it was accepted by counsel for the applicants that, in order to establish that his Honour so erred, the applicants were required to satisfy us that it was reasonably arguable that it was not open to his Honour on the evidence to make the impugned findings. In the circumstances, it is convenient to analyse the applicants' various arguments in the context of each of the above matters, as to which, it was said, his Honour erred.

22 Before dealing with the applicant's arguments, it is important to state the principles which govern the application for leave to appeal against the decision of Ashley, J. The applicants must show that the decision was arguably wrong and that it would be a manifest injustice if it was not corrected: Niemann v. Electronic Industries Ltd[8]; Coles Myer Limited v. Bowman[9]. In addition, it was common ground between counsel before us that his Honour's decision involved the exercise of a discretion. In such a case there is a strong presumption in favour of the decision being correct.[10] We are not re-hearing the application which was considered by Ashley, J. and it would not be sufficient for a grant of leave were we merely to conclude that we might have reached a different conclusion to that reached by his Honour. The applicants must show that the decision was clearly wrong, applying a wrong principle or being tainted by error of fact or law in the exercise of the discretion: Australian Coal and Shale Employees' Federation v. Commonwealth[11].

Whether the process of establishing the trusts was flawed

23 It was part of the applicants' case that the process by which the trusts were eventually approved was flawed, and, consequently, the agreements to approve the trusts was ineffective. It would follow, said counsel for the applicants, that the court should not have ordered that the money in question be paid to the trustee. More particularly, counsel said, the fatal flaw in the process arose because:

(a) those who were asked to represent the relevant Aboriginal groups and to agree to the formation, and to the terms, of the trusts were not provided with the relevant information about the proposed trusts so that their agreement was uninformed and, therefore, ineffective;

(b) the persons who agreed to the trusts were not representative of the relevant Aboriginal groups for whose benefit the Agreements were made, more specifically, the Gunai/Kurnai people; and

(c) the original signatories to the Agreements were impermissibly shut out of involvement in the authorisation process.

24 We turn to consider in turn each of the claimed improprieties in the authorisation process.

Failure to provide information to meetings

25 As we have noted, the applicants contended that the evidence before his Honour showed that there was little by way of information about the proposed trusts that was provided to the various Aboriginal groups which met to elect representatives to go to Cooma in order to consider the establishment of a mechanism by which the funds in question were to be applied to the potential beneficiaries. Similarly, it was claimed there was failure to provide sufficient relevant material to those at the Cooma meeting. And, to compound this critical failure, claimed the applicants, such information as was given to the relevant groups was not provided in a timely manner and the meetings were unduly "rushed". It was pointed out that discussions about how to distribute the funds were undertaken between August 1997 and about late 2002 without any agreement having been reached, yet the first respondent "pushed through", in a period of less than six months, the impugned agreement to establish the trusts. In the circumstances, the applicants said, those who purported to agree to the trusts were relevantly uninformed and had been "stampeded" into giving their consent to the proposed course. Hence, it was claimed, the agreement to establish the trusts was ineffective and it follows, so it was said, that there should not have been an order made requiring the payment of the moneys in court to the trustee.

26 But we think that this argument must fail. Quite apart from the fact that this line of argument was not pursued before his Honour, it is not substantiated by such evidence as was placed before the Court. Perhaps more relevant for present purposes, we think that, on the evidence, it was well open and appropriate to his Honour to reject the applicants' claim in that regard. We say this having regard to the following. The material before the court showed that between November 2002 and January 2003 NSWNTS and Mirimbiak (subsequently, NTSV), convened meetings of the seven groups to discuss the setting up of the Nyamin trust. On 25 November 2002 Mirimbiak wrote to Gunai/Kurnai native title holders giving notice of a meeting to discuss a proposal for the establishment of the Nyamin trust. The writer set out the history of efforts to create the trust and of the "ongoing disagreement between the groups as to how the money should be distributed and how the trust should be structured". Although it was stated in the letter that there was a note annexed to it that set out the "key features" of a proposal for the trust which Mirimbiak and NSWNTS had agreed to put to the groups, that note was not exhibited. Nonetheless, when the proposed meeting was held in Bairnsdale on 30 November 2002 the minutes recorded that solicitors from Mirimbiak and NSWNTS explained the proposal as to both the trust and the establishment of NAC. Thus, the learned judge had before him material that showed, for example, that the Bairnsdale meeting of 30 November 2002 received a detailed explanation as to what was proposed to be done at Cooma.

27 In support of their contention that the consultation process had been inadequate, counsel for the applicants referred to a comment of one participant, Albert Mullett, recorded in the minutes of the Bairnsdale meeting of 30 November 2002. The minutes record Mr Mullett saying of the trust proposal "we haven't been told anything about it". In our opinion, the highlighting of such a passage reflects the inappropriateness of approaching the application for leave to appeal as though it was a re-hearing of the application before Ashley, J. This Court is concerned to determine whether his Honour's decision was tainted by relevant error. The remark of Mr Mullett was not referred to in the reasons of Ashley, J and indeed, may well not have been the subject of any submission to him. His Honour considered a vast amount of material and was not obliged to refer to it in detail in his reasons for judgment. With respect to the reported remark of Mr Mullett no further evidence was produced as to what he meant by it and, in any event, it was made before the meeting was addressed by the lawyers present for the purpose of explaining the proposals. The minutes record that at the end of the meeting Mr Mullett was one of the seven persons nominated to attend the Cooma meeting as a representative of the Gunai/Kurnai, but, as the minutes of the meeting show, did not vote against the proposals to establish the trusts.

28 It should be noted that none of the present applicants attended the Bairnsdale meeting. The only EGPA signatories who did attend were Leslie Thorpe (who was one of the signatories for the Gunai/Kurnai) and Rachel Mullett (who alone signed for the Bidawal people). As the minutes disclose, invitations to the meeting had gone to everyone on a mailing list and advertisements were placed with all Aboriginal co-operatives. No deponent in any affidavit before Ashley, J. asserted that he or she was unaware of the proposed meeting. The Bairnsdale meeting resolved that seven people would attend the proposed Cooma meeting on behalf of the Gunai/Kurnai, although it was recognised that Mirimbiak had said that it could only afford to pay expenses for four participants. The seven persons nominated did not include any of the present applicants.

29 On 2 February 2003 Mirimbiak wrote to Gunai/Kurnai and Bidawal native title claimants, including the first, second, fourth and sixth applicants. Enclosed with that letter was a summary in English language, and in simple terms, of the proposed Nyamin trust deed and an explanation of how it would work. The writer, Mr Chris Marshall, the acting CEO of Mirimbiak, noted that there was an important issue causing concern in many of the groups about how people could claim affiliation with one or other group, but he urged that that issue not delay the establishment of the trust in the meantime. The letter of 2 February 2003 to the Gunai/Kurnai claimants referred to the proposed trust deed and enclosed a summary of it, including details of how the money was to be distributed among the various Aboriginal groups and the fact that the NAC was to manage the trusts.

30 The letter from Mr Marshall also referred to the forthcoming meeting (the site of Cooma had not yet been decided) and made it quite clear that, although only four representatives could be funded, others were welcome to attend the meeting. On 10 April 2003, Mirimbiak again wrote to Gunai/Kurnai and Bidawal claimants, this time giving the time and place of the Cooma meeting. Again, it was made very clear that "everyone is welcome to attend this final meeting" but that only four could have their expenses met. The writer named the four nominated Gunai/Kurnai representatives whose expenses would be met. Once again, there was no evidence that the applicants did not receive this letter or were unaware of its contents.

31 On 29 April 2003 the Cooma meeting was conducted, involving representatives of the seven signatory groups. Present were forty Aboriginal people, together with solicitors and advisors from NSWNTS and Mirimbiak. Very detailed minutes were kept. At the Cooma meeting, copies of the trust deeds were distributed to the attendees and an extensive explanation was provided as to the nature of the trusts and of the composition of NAC. At the meeting lawyers with NSWNTS proposed that not one but two trusts should be established and explained the taxation advantages that would result. A resolution was put and carried that NAC be finalised and that the Nyarmin Discretionary Trust and the Nyarmin Scholarship Trust be established. The meeting resolved that NSWNTS apply to the Supreme Court to release the trust funds to NAC. Only four people voted against the resolution.

32 Although none of the present applicants was present at Cooma the first applicant deposed that the sixth applicant attended as both her representative and that of the second applicant. As to the Cooma meeting, she deposed (emphases added):

"Since 1997 I, Mr Lindsay Mobourne, and our delegate Ms Pauline Mullett have continued to voice our concerns about the handling of the Nyarmin Trust issue by the Native Title Representative Bodies. We have done this in a variety of public forum including the Cooma meeting held on 29 April 2003. We have been ignored. Apart from the behaviour of the Native Title Representative Bodies we are concerned about the manner in which beneficiaries will be identified."

33 The minutes disclose that the sixth applicant did not vote against the resolution put to the Cooma meeting.

34 On 12 May 2003, that is, after the Cooma meeting had carried its resolutions, a further Gunai/Kurnai meeting was held in Bairnsdale. The first and third applicants and Leslie Thorpe were in attendance among the thirty odd participants. The minutes of the meeting of 12 May 2003 disclose no complaint then made by the first applicant about the Cooma decisions. The minutes do reflect that there was much discussion about the process which would be adopted for determining who belonged to which group, and reference was made to genealogies being compiled by anthropologist Dr Ian Keen to assist that process. The role and membership of the Council of Elders was said to be vital in determining those issues. One person suggested that that Council should be the body to make all decisions concerning development matters affecting Gunai/Kurnai. Although the minutes were pointed to as supporting counsels' contentions for the applicants that the representatives at the Cooma meeting were not properly authorised to speak for the Gunai/Kurnai the minutes of this meeting do not reflect that any such view was then stated.

35 On 16 May 2003 Mirimbiak wrote to Gunai/Kurnai claimants and also Bidawal claimants reporting on the Cooma meeting and the resolution as to two trusts, and inviting people to join NAC. The letter reported that those at the meeting had overwhelmingly supported the establishment of the trusts and the appointment of NAC as trustee. The letter went on to say that if any person wanted a copy of the minutes of the Cooma meeting they would be made available.

36 For completeness, we note that the applicants did not relevantly complain about the Cooma decision until after the making of the impugned order.

Complaint that non-representative persons were consulted

37 A significant part of the hearing before us was taken up by the applicants' claim that his Honour erred in rejecting their contention that the persons who attended the Cooma meeting - at least so far as the Gunai/Kurnai, the Wadi-Wadi and Dharawal clans were concerned - were not truly representative of the respective Aboriginal groups on whose behalf the EPGAs were signed. It was the applicants' case that there was no evidence before Ashley, J. on which he could have properly come to the conclusion that there was sufficient representation in that regard. We consider, however, that there is no merit in this complaint. The only Aboriginal group of relevance for present purposes that attended the Cooma meeting is that which was "appointed" by the Gunai/Kurnai Aboriginal clans at its meeting at Bairnsdale in November 2002. His Honour had before him a considerable body of evidence that established that they were duly authorised to represent that clan. Thus, for example, the evidence showed that the meeting was well attended by the Gunai/Kurnai people and that the nominees from that group were chosen after a lengthy explanation was given at the meeting as to what was proposed to be done at Cooma in relation to the establishment of the trusts through which the funds in question were to be administered.

38 The first applicant deposed that upon examination of the minutes of the Cooma meeting, and based on her belief and knowledge (as senior female elder of the clan) of the genealogy of the clan, most of the persons purporting to be members of the Gunai/Kurnai Native Title Group who attended the meeting at Cooma did not fall within "the definition". She said that many of them had previously claimed to have a right of title through another clan or clans.

39 Of the seven persons who had been nominated at the Bairnsdale meeting to represent Gunai/Kurnai four actually attended the Cooma meeting, one of whom was Sandra Patten[12]. In addition to those four, Rita Atkinson and Sheila Baksa, who were named among Gunai/Kurnai claimants, but had not been nominated to attend, were also present. The first applicant deposed that Sandra Patten was not a member of the Gunai/Kurnai claim group, being a descendant from traditional owners of land in New South Wales and that Ms Patten had conceded those contentions to be correct.

40 As we have noted, on 12 May 2003, that is, after the Cooma meeting had carried its resolutions, a further Gunai/Kurnai meeting was held in Bairnsdale at which the first and third applicants were in attendance, with about thirty others. The meeting nominated Sandra Patten to act as chairperson of the Gunai/Kurnai meeting. The fact that she was chosen to chair the meeting might or might not support the first applicant's contention that she was not in fact Gunai/Kurnai but it would not mean that the process of consultation failed because she played the role of chairperson, or because she attended or spoke at the meeting.

41 The first applicant also complained about Ms Guthrie's claim in her affidavit that Ms Patten "signed the trust deed ostensibly on behalf of the Gunai/Kurnai

claim group" [13]. It was said she had no authorisation to do so and was not a member of that group. The question need not be resolved, nor did the judge need to resolve it, as it was not an issue before him. Whether the first applicant's contention as to the status of Ms Patten is valid seems to us not to be a matter which is significant for the present application. The identities of the signatories of the trust deed would not determine who might be entitled to the trust funds, nor would it be relevant to the question whether the trust deeds and the role of NAC were inconsistent with the agreements.

42 In light of this material, and in the absence of complaint by the applicants prior to April 2002 about the representation issue, it was open to his Honour to find that the representatives who attended on behalf of the Gunai/Kurnai clan were truly representative of it. We note that, in contrast to what was claimed before us in that regard, there was no suggestion before Ashley, J. that the representatives of this Aboriginal group needed to have the authority of traditional elders before they could effectively agree to the establishment of the trusts.

43 Moreover, as has been noted, at the Cooma meeting the first two applicants were represented by their "delegate" Ms Pauline Mullett, did not vote against their establishment of the trusts or their terms; nor did she vote against the appointment of NAC as trustee. The letter of 16 May 2003, to which we have referred earlier, notified the applicants that the Cooma meeting had approved the trusts, appointed NAC as trustee and had authorised an application to be made to the court for the payment of the funds out of court to NAC as trustee. Notwithstanding this, the applicants made no relevant complaint about the trusts until after Ashley, J. made orders on 3 February 2004 for the payment to the NAC of the funds that were in court.

44 We iterate that we consider that the applicants' claim that the procedure to establish the trusts was relevantly flawed must be rejected.

Exclusion of signatories from meetings

45 It was also the applicants' case, as we have noted, that, on the evidence, his Honour was required to find that the signatories to the EGPAs had been effectively shut out from involvement in the authorisation process. The applicants claimed before us that the signatories to these agreements were not provided with proper documentation or explanation of how the relevant representatives were to be chosen or how the funds would be applied in accordance with the EGPAs through the contemplated trusts. Moreover, it was said, such information as was made available to them, was not provided in a timely manner so that they were effectively precluded from participating meaningfully in the authorisation process. But, as has already been noted, the evidence before his Honour was such that it was well open to the learned judge to conclude that the signatories were not shut out, directly or indirectly, from participating in that process.

46 Another, related, contention was pressed by the applicants before us that was rejected by his Honour, namely, that the EGPAs, more particularly clause 2.1, requires that there be a meeting of the signatories (presumably to determine the allocation of the funds that have been paid into court) before those funds could be properly ordered to be paid out of court. Since no such meeting had taken place, argued the applicants, his Honour should not have made the impugned order of 3 February 2004. We are of the view, however, that not only was it plainly open to his Honour to reject such arguments, but that his Honour was right in so doing. We say this for the following reasons. First, his Honour correctly pointed out that it would be impossible to hold the meeting for which the applicants' contended, given that some of the signatories were dead and others were too old or would otherwise have not been able to travel to such a meeting. More importantly, however, we consider that his Honour was correct in his conclusion that clause 10.1 of the EGPAs did not require the "original" signatories, as distinct from the representatives of the class on whose behalf the signatories had raised the native title claims, to determine how the funds were to be administered. The applicants contended before us that, on its proper construction, clause 10.1 imposed on them (and other surviving signatories) the obligation to administer the funds. In our view, however, this argument demonstrates a misunderstanding of the operation of clause 10.1, which provides:

"Where native title claimants have obligations under this Agreement, they will perform those obligations in due consultation with the communities on whose behalf they applied for determination of native title."

To the extent that the clause is directed to the signatories to the EGPAs (who were "registered" native title claimants) its principal focus seems to be on the requirement that the signatories consult the relevant communities, but only with respect to the performance by them of their obligations under the agreements, such as those that are set out in clause 2. The EGPAs place no obligations on the signatories that relate to the administration of the funds paid by the pipeline developer. On the contrary, clause 7 makes it plain that the administration of the funds is to be undertaken by a trust, yet to be established, and that the money was to be paid to the trustee of such a trust. Thus, no work in relation to the funds is carved out by the EGPAs for the signatories. Moreover, as the respondents correctly pointed out, by 4 November 2004 the first two applicants were no longer registered native title claimants so that whatever relevant status they may have had at the time of the signing of the agreements, such status was no longer relevant by the time the matter came before his Honour. Hence, the learned judge was quite correct, with respect, in rejecting the applicants' contention that the EGPAs imposed on the signatories a personal obligation to determine how the funds were to be dealt with once they were paid over such that the funds could only be properly paid out of court in accordance with such a determination.

47 We mention for completeness that it was further contended for the applicants that his Honour's decision in this regard failed to recognise the status of the first applicant as senior elder who represented hundreds of Aboriginal people having an interest in the funds being properly administered and who had the authority to maintain and enforce Kurnai culture and tradition to "keep the law, customs, totems and traditions". It is plain from his Honour's reasoning that he duly recognised the status of the first applicant as senior elder of her community, although nothing turned on this recognition for the purposes of the applicants' case before his Honour. [Given particularly that the first respondent did not seek to bring the proceeding on behalf of her clan. She might say her affidavit amounted to her assertion that she was speaking for her clan!]

48 We repeat that, in our view, it was well open and appropriate to his Honour to hold that there was no merit in the applicants' claim that they were relevantly excluded from the authorisation process.

Inadequacy of the trusts

49 We now turn to consider the applicants' case that the trusts are flawed in the sense that they are incompatible with the EGPAs and, therefore, the moneys paid under them to the court should not have been paid to the trustee. More particularly, it was said, the agreements provide for only one trust to be established, whereas two trusts were purportedly created. It was then claimed that, in any event, the trusts provide for a smaller range of beneficiaries than was contemplated by the EGPAs and that the interest to be obtained by the Aboriginal people under the Discretionary Trust would be inferior to those obtainable under the agreements.

One trust

50 The first claim can be disposed of shortly because, in our view, it plainly has no merit. The EGPAs themselves necessarily contemplate that the funds in question would be dealt with in accordance with two trust "structures". Thus, clause 7.4 of the agreements provides for the setting aside from the funds a sum for the purpose of establishing the "Scholarship Fund". That plainly contemplates the creation of a charitable trust, that would be open "for all Aboriginal people in the region of the pipeline ... and may include sporting, cultural and academic scholarships". It is also clear that the agreements contemplate that the balance of the funds would be held pursuant to a trust that would not be necessarily charitable. Whether the creation of the charitable trust - the Scholarship Fund - was to be undertaken under the umbrella of the one trust deed, or whether two deeds were proposed is, as a matter of substance, totally irrelevant. Thus, we think that it is obvious that the establishment of the two trusts, rather than one, is not inconsistent with the substantive aims of the EGPAs.

Disconformity between Agreements and trusts

51 We now turn to the applicants' claim that there is disconformity between the beneficiaries contemplated by the EGPAs on the one hand and the trusts on the other. Thus, it was said, the trusts do not make provision for non-native title payments as is required by clause 9.1 of the Agreements. This clause provides:

"9.1 Aboriginal people who are not native title claimants but whose interests are nevertheless affected by the pipeline may participate in this agreement with respect to training, employment and access by application to the ... Trust."

It was claimed before us, as it was below, that no provision is made for such non-native title claimants in the Discretionary Trust deed and, in the case of the Scholarship Trust, the provision for such beneficiaries is limited to those who, at the time of distribution, are ordinarily resident within a corridor of ten kilometres on either side of the pipeline. His Honour rejected the argument that there is relevant inconsistency in that regard between the two sets of documents and we think, with respect, that his Honour was correct in doing so.

52 Dealing first with the Scholarship Trust, "beneficiary" is defined in the deed as any person who shall, at any time, be a member of one of the respective Aboriginal clans on whose behalf the relevant EGPA was signed. It may be assumed that such persons fall within the category of "native title claimants" as envisaged by clause 9.1. The last paragraph of the definition of "beneficiary" in that deed - paragraph (g) - relevantly refers to any other Aboriginal person who, at the relevant time, ordinarily resides within the geographic corridor referred to earlier. Thus, apart from the geographic limitations, Aboriginal people who are not native title claimants (and whose interests are at least notionally affected by the pipeline[14]) are relevantly catered for by the trust deed, consistently with the requirements in that regard of clause 9.1. It seems to us that, if anything, the definition of "beneficiary" in paragraph (g) probably expands the category of persons contemplated by clause 9.1. As we have noted, all that is required under that definition is that the Aboriginal person ordinarily resides within the geographic corridor; he or she does not have to establish that their interests have been "affected" by the pipeline. The applicants, however, contended that paragraph (g) operates to limit the class of non-native title claimants that is contemplated by clause 9.1**.** One of the problems with this assertion, however, is that the applicants have led no evidence to establish that there are, or may be, Aboriginal non-native title claimants who ordinarily reside outside the corridor but who would fall within the ambit of clause 9.1. Thus, it may be the case that there are no such persons. It follows that, in the circumstances, the applicants have failed to establish that there is relevant disconformity between the Scholarship Trust and clause 9.1 of the EGPAs.

53 As to the Discretionary Trust, "beneficiary" is defined as a person who is or shall be a member of a relevant Aboriginal clan. It is arguable that the definition excludes non-native title claimants and, therefore, the trust does not conform to clause 9.1 of the agreements. But this issue was not raised directly for resolution by his Honour. Rather, the contention was that the court had not been told on 3 February 2004 that four of the applicants before his Honour had "concerns" that the trusts do not provide for Aboriginal people who are not native title claimants. These applicants, however, did not have a vested interest in the outcome of this issue and there was no party before his Honour who had such an interest. In other words, no-one appeared below who might be excluded from access to the fund administered through the Discretionary Trust because he or she is not a native title claimant in order to argue that the trust contains this deficiency. Importantly, we think, no evidence was led before his Honour by the applicants to establish that there are persons who would fall within clause 9.1 of the EGPAs, but who would not be potential beneficiaries for the purposes of the Discretionary Trust because they are not native title claimants. Consequently, it does not follow that there is a real risk that the funds will be dealt with by the trustee contrary to what is contemplated by the agreements. In any event, his Honour was probably correct when he said that, as a matter of construction of the agreements, the intention behind clauses 7.4 and 9.1 was that non-native title claimants were to benefit from the sporting, cultural and academic scholarships referred to in the EGPAs and this intention is reflected in the terms of the Scholarship Trust. In the circumstances, as we have noted, no relevant error was made by his Honour in exercising his discretion not to vacate his order of 3 February 2004 because of the "concerns" of the four applicants before him that the trusts do not conform with what was contemplated by clause 9.1 of the agreements.

Discretionary Trust provides interests that are inferior

54 As we have noted, another basis on which the applicants sought to attack the propriety, if not the validity, of the trusts was that the interests of the relevant Aboriginal people to payment of funds under the Discretionary Trust is inferior to that which would be available to them under the EGPAs. In part, this submission was based on the erroneous assumption that members of each group claiming native title had an absolute equitable interest in a proportion of the fund. It is obvious enough, however, that agreement was required of each of the seven relevant Aboriginal groups before the funds could be applied as envisaged by the agreements. Until such agreement was reached, no member of the seven Aboriginal groups could have called for all or any part of the moneys to be paid to him or her. Thus, no member had an equitable interest in the moneys due to be paid under the agreements. There being no equitable interest that was held by any such Aboriginal person, it follows that the applicants' claim that the Discretionary Trust is inferior to the antecedent equitable interests of each member, must fail.

55 It was next said in support of the claim that any interest obtained under the Discretionary Trusts is relevantly inferior to that contemplated by the EGPAs, that the trustee is free under clause 10.1 to amend the deed (albeit with the consent of the appointor). This contention was not put to his Honour but is, in any event, without merit. Clause 10.1 precludes the trustee from amending, amongst other things, clause 3.1 which defines the composition of the beneficiaries of the trust. Relevantly, that definition includes the Gunai/Kurnai Aboriginal people. Thus, the amendment clause precludes the displacement of Aboriginal groups who have an interest in the fund. Similarly, clause 3.2, which provides the mechanism for clarifying who the members of each Aboriginal group might be, protects the rights of the members of the Aboriginal groups that are defined as beneficiaries.

56 The applicants also claimed in support of the above argument that, under clause 10.1, the trustee could amend clauses 4 and 5 of the deed that deal with the incoming capital of the trust. Thus, it was said that there could be no guarantee that the relevant Aboriginal clans as beneficiaries under the Discretionary Trust will enjoy the benefit of those clauses. But as the respondents pointed out in their submissions, not only was clause 10 agreed upon at the Cooma meeting, there was no evidence that the power of amendment would be exercised so as to alter the proportion agreed by the Aboriginal groups. After all, NAC comprises members of all seven relevant Aboriginal groups and the first respondent which is charged with the responsibility of promoting the interests of the Aboriginal groups.

NAC not appropriate trustee

57 Another complaint that was raised before us, but not argued before Ashley, J., was that NAC - the trustee that was appointed at the Cooma meeting - was not an appropriate entity given the flawed authorisation process pursuant to which it was so appointed. But, for the reasons we have given, the impugned process was not flawed and we see no validity or impropriety in the appointment of NAC as trustee of the trusts.

58 We now turn to deal with the applicants' argument that his Honour's reasons bespeak other relevant errors on his part that vitiated his decision of 5 November 2004.

59 The applicants claimed that his Honour's characterisation of the authorisation procedures as "essentially democratic" led him to conclude that the process was adequate to establish the trusts in question. The applicants argued that such a "broad brush" description of the process overlooked the "contractual obligations" that had to be complied with in respect of the distribution of the funds and the "property rights" of the native title claimants that were given up in return for access to the money paid by the pipeline developer. Furthermore, it was said the decision making process concerning native title was based on the authority of elders, not on democratic processes which might be adopted by non-Aboriginal people. We consider, however, that there is no substance in these complaints. First, his Honour's use of the term "democratic process" was no more than a shorthand description of the procedure by which agreement was reached to establish the trusts. That process did not preclude those who participated in the meetings from contending that their opinion ought to have carried additional weight by virtue of their status as elders, or for any other reason. But as we have pointed out, behind the characterisation of the process, was his Honour's effective findings that there was no undue haste in the calling of the meetings, that there was sufficient and timely provision of information to the relevant groups and that there was proper representation of the clans at the Cooma meeting. Such findings, as we have explained, were well open to his Honour and, in the circumstances, his characterisation of the procedure as "essentially democratic" was apt.

"Handful" of complainants

60 The applicants also claimed that his Honour's finding that only a "handful" complained about the order of 3 February 2004 was contrary to the evidence. We consider, however, that there is no doubt that his Honour was correct in this finding given that dozens participated in the meetings in question, yet the applicants are the only known complainants of the process and who, in any event, did not make their complaints relevantly known until after the impugned order was made. It seems that the basis upon which the applicants made their surprising claim is that they are tribal elders and can, therefore, speak on behalf of their respective (large) groups. In the case of the first applicant, for example, it was said that, since she was a senior elder of the Kurnai people who numbered approximately 800 persons, she effectively spoke for them on this issue and related matters so that the statement by his Honour that only a "handful" complained of the impugned order is not supported by the evidence. But this argument plainly lacks merit. First, the applicants did not bring the proceeding in a representative capacity and, consequently, they do not relevantly speak on this issue on behalf of their constituents. Secondly, and in any event, there was no evidence before his Honour that members of the respective clans considered that the impugned order should be vacated. Accordingly, this argument must fail.

Claimed entitlement by native title claimants to proportions of the fund

61 It was also submitted for the applicants that his Honour failed to state with sufficient precision either the identity of the beneficiaries or the terms of the trusts. Such interests under the trusts, it was said, should have corresponded to each clan's entitlement to its respective rights to the fund as reflecting compensation for the extinguishment of their native title rights over the pipeline. This claim was not pressed before his Honour. Be that as it may, we consider that this argument is misconceived and, therefore, must fail.

62 Essentially, it was contended in support of this claim that, since the EGPAs were entered into for the purpose of "extinguishing" native title rights over the area of the pipeline route, compensation was to be paid in consideration of the abandonment of such rights and thus, the funds in court were held for the several native title claimant groups in proportion to the abandonment of their claim. But as the respondents pointed out, there was no evidence adduced before his Honour to show that the purpose of the agreements was to extinguish native title rights in return for compensation. Moreover, at the time the Agreements were negotiated and made, none of the seven Aboriginal groups held native title, which is a creature of statute. Until such time as the Federal Court recognises that an Aboriginal group has native title, any native title right is merely contingent or potential. In the circumstances, the native title groups here did not have recognised native title rights over any portion of the pipeline route and there is nothing in the Agreements that state that they relinquished any such rights.

63 The applicants also sought to argue that the first respondent had no standing to commence the proceeding that was resolved on 3 February 2004. This matter was not argued before his Honour and it is plainly too late for it to be pressed. But even if the applicants could properly make such a claim at this late stage, it is obviously without merit, given that the meeting at Cooma authorised the first respondent to apply to the court to have the funds released to NAC.

Proposed amendments, removal of first respondent

64 We mention for completeness that during the hearing of this matter, the applicants' counsel sought leave to file an affidavit and add a further ground to the proposed notice of appeal. These applications were based essentially on the fact that the Minister, acting under the Native Titles Act, withdrew the recognition of Mirimbiak to act as a body representing Aboriginal interests regarding the present dispute. The applicants also sought an order removing the first respondent as a party to the present application. We refused leave to the applicants to file the affidavit or to permit them to amend the proposed grounds of appeal. Similarly, we rejected the application to remove the first respondent as a party to the proceeding. Our reasons for that course were published in the form of our ruling made on 4 May 2005.

Conclusion

65 In the circumstances, we consider that the applicants have failed to demonstrate that his Honour's impugned decision is attended with relevant doubt. It follows that their application for leave to appeal against that decision must fail.

[1] Regina Rose, Lindsay Mobourne, Dot Mullett, Norman Hood (since deceased), Frank Hood and Pauline Mullett.

[2] The claimants before Ashley, J. who have not joined in the leave application are Reuben Brown, Alan Carriage, Barbara Nicholson and Gwen Brown.

[3] The summons issued by the Duke companies, dated 24 January 2003 was, however, directed to those bodies in addition to each of the signatories of the seven EGPA's.

[4] The Minister for Aboriginal Affairs, exercising power under s.203AH of the Act, withdrew recognition of Mirimbiak as a Native Title representative body on 17 April 2003. Thereafter, the Victorian native title representative body was Native Title Services Victoria Ltd, which was incorporated on 12 August 2003.

[5] See para.[1] above.

[6] We note that, as emerged in the evidence before Ashley, J., dissention arose within the ranks of those identifying as Gunai/Kurnai as to who properly fell within the group for native title purposes. The first applicant deposed that application had been made in the Federal Court by herself and others to have that issue resolved. On 26 October 2004, North, J. ordered in the Federal Court that the first two applicants cease to be listed as applicants for the Gunai/Kurnai native title claim which had already been lodged, and made provision for a separate native title application to the same land to be registered on behalf of the Kurnai people, thereby enabling the disputants to advance separately their contentions as to native title rights.

[7] Which are misdescribed as "Appellants' Outline of Argument".

[8] [1975] V.R. 431.

[9] [1986] 1 V.R. 457.

[10] See, for example, House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499, at 504-5.

[11] [1953] HCA 25; (1953) 94 C.L.R. 621, at 627.

[12] In addition to Sandra Patten, Albert Mullett, Gwen Atkinson and Lloyd Hood attended, each having been nominated to do so.

[13] That statement does not, in fact, appear in the affidavit of Ms Guthrie, but it might well be found elsewhere in the voluminous evidence.

[14] We say "notionally" because paragraph (g) does not, in terms, impose the requirement that the interests of such persons are "affected by the pipeline". Nevertheless, it probably assumes that the deed treats all such persons as being relevantly affected by the pipeline if they ordinarily reside in the corridor.