The pre-authorisation meeting
31 I accept Ms Malyon's evidence that 68 Olkola People attended the pre-authorisation meeting.
32 The primary purpose of the pre-authorisation meeting was to give people information about what was likely to be discussed at the authorisation meeting. The meeting notice described the meeting as being "to discuss the proposed authorisation process for the Olkola Native Title Group".
33 The meeting notice also indicated, perhaps not as prominently as it might have, that there was to be a decision taken at the pre-authorisation meeting about whether the ancestor Kitty Starlight should be included as an apical ancestor in the group description for Olkola People to be included in the s 87A agreement.
34 The meeting notice for the authorisation meeting was sent out by CYLC prior to the pre-authorisation meeting. It was also made available in hard copy at the pre-authorisation meeting. However, by the time of the pre-authorisation meeting, the authorisation meeting notice had not been published on the CYLC website or its Facebook page. I find it is more likely than not that many of the 68 Olkola People who attended the pre-authorisation meeting might not have seen the meeting notice for the authorisation meeting. That finding does not affect my comfortable persuasion that most of those who attended the pre-authorisation meeting understood they were only discussing which PBC should be chosen for Olkola People.
35 While each Olkola person was given a set of materials about the s 87A agreement, no materials were distributed about the PBC. I infer from the evidence, especially Ms Malyon's evidence, that nothing was said about the PBC until Mr Ross gave his speech. I accept Ms Malyon's evidence at [32] of her affidavit that she:
spoke to the pre-authorisation meeting about the legislative requirements under the NTA to nominate a PBC and advised that Olkola Traditional Owners would have a choice at the authorisation meeting between the OAC and a newly incorporated Aboriginal corporation. I also advised that decisions on the nomination of a PBC for the proposed Olkola determination area, and for "jointly held" areas, would be made at the Olkola Authorisation Meeting on 29 February 2024.
36 Whether or not Ms Malyon's advice occurred before or after Mr Ross spoke (there was a debate about the chronology on this point), the main finding I make is that the need for a choice of PBC at the subsequent authorisation meeting was raised at the pre-authorisation meeting, and there was a sustained speech by Mr Ross in support of OAC becoming the PBC.
37 While there were some initial contentions, in evidence from Ms Symonds, that a decision was made at the pre-authorisation meeting about which PBC would be nominated, by the time of the hearing of the interlocutory applications it was clear the contention went no higher than Ms Symonds, and some of the Olkola People who support her position, believed OAC would be nominated as the PBC, because there had been no real discussion about the alternative PBC at the pre-authorisation meeting. I accept that evidence. I find there was little or no discussion of the alternative PBC at the pre-authorisation meeting, and I accept what was submitted on behalf of Ms Symonds in this respect. I also accept that copies of the CYLC template corporation rule book were not provided.
38 In that sense, there was no real information provided about the "new PBC". In some contexts that fact might be critical to a decision about whether there was sufficient information presented so that people went to the authorisation meeting understanding what needed to be decided, or so that people could decide whether to attend at all.
39 Counsel for Ms Symonds relied on the following passage from Rares J in Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40], in which his Honour found a meeting notice invalid:
Ordinarily, it would not serve any purpose to require such notices to set out at great length and detail material of the nature that is sometimes sent to members of a corporation who are asked to consider amending or voting on resolutions put forward by directors. Nonetheless, the basic test that the common law has developed for notices calling meetings is suitable and adaptable to meetings such as those called under s 251B of the Act. The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. That test conforms to the substance of what the Full Court of this Court synthesised as the test for a valid notice of meeting identified in a well-known line of authority in corporations cases: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466B-C per Black CJ, von Doussa and Cooper JJ.
(Emphasis added.)
40 However, all this is highly context-dependent. In this particular context, I find the choice people were focused on, including those associated with OAC, was whether OAC should be the PBC. There was not, in that sense, a competing alternative faction of Olkola People on any specific campaign for a different PBC. The focus was on OAC, and what I find the evidence discloses about some level of dissatisfaction with how it had conducted its activities in the past, whether it was sufficiently inclusive, or whether it was focused on only particular family groups, or sub-groups of Olkola People. That is why, I find, Mr Ross' speech was so important, and he understood this. The persuasive job to be done was to convince Olkola People, or a majority of them, that OAC was the right body to hold the Olkola native title. In that sense, the focus was not on what any alternative PBC might look like, or who might be its directors. It was a more general proposition that the alternative was not OAC.
41 I accept the fact that there was a decision taken about a matter going to the proposed consent determination (the inclusion or non-inclusion of the ancestor Kitty Starlight) might have led to some confusion at the pre-authorisation meeting about whether a choice about a PBC was also being made then or not. However, the weight of the evidence, and the subsequent clarification by Ms Symonds, persuades me that on the balance of probabilities most of those attending the pre-authorisation meeting were likely to have understood that the choice of PBC was something they would have to make at the authorisation meeting itself.
42 That explains, I find, why Mr Ross spoke at such length about OAC, for 30 minutes to an hour. I find he understood that there was an alternative proposal being made, for a new PBC to administer the native title of the Olkola People. I find he understood there was a real possibility OAC might not be chosen; that is why he spent a considerable amount of time describing the achievements of OAC, and its aspirations for Olkola People. The possibility of Olkola People making a different choice at the authorisation meeting explains, I find, why it was Mr Ross and not Mr Cameron or Ms Symonds who spoke.
43 There was only a gap of about two weeks between the pre-authorisation meeting and the authorisation meeting. There was much at stake, and I find that Mr Ross, as a senior and respected Olkola man, sought to make the most persuasive case he could for OAC, knowing that those attending the pre-authorisation meeting were likely to go away and speak to each other and their families about the choice they had to make a couple of weeks later.
44 I find it is likely that those who supported OAC were confident after the pre-authorisation meeting. Even some of the witnesses who provided affidavit evidence to support the CYU#1 claim applicant described Mr Ross as having made a "good speech". Mr Ross is, I find, a highly respected senior Olkola man. The absence of anyone speaking in favour of an alternative PBC at the pre-authorisation meeting was likely to have further encouraged that belief. The affidavit evidence of people such as Mr Brendan Ross indicates in my opinion this kind of confidence. Not because any formal resolution had been made, but rather because Mr Ross had delivered a good speech, he was highly respected, and no one had spoken in opposition or talked about what any alternative PBC might be. To that extent I find Mr Ross is likely to have also had a sense of confidence, and that is why he did not take any further steps ahead of the authorisation meeting, such as seeking the injunction he refers to in his evidence.
45 I also find that this sense of confidence may well have led some Olkola People not to attend the authorisation meeting, or not to bring all their family members. Ms Karrell Ross deposes that she has two adult children who would have come to the authorisation meeting to vote for OAC, and that she agreed with her mother Shirley that they need not trouble her aunt Elizabeth, who attended the pre-authorisation meeting, to go to the authorisation meeting.
46 The vote at the authorisation meeting was tight, as Ms Symonds submitted. It was 35 votes in favour of a new PBC, against 29 votes in favour of OAC. In that sense, I accept that decisions by Olkola People not to attend the authorisation meeting could have mattered, and could have affected the outcome of the vote. This is a serious reminder of the importance of people attending meetings, and not making assumptions. As I explain below, where people do attend, it is also vital that they make their views known, especially if they have objections. I have made similar observations in previous decisions: see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463 at [23].