Smallwood on behalf of the Juru People v State of Queensland

Federal Court of Australia|2014-03-03|Before: Rares J

RARES J DATE OF ORDER: 3 MARCH 2014 WHERE MADE: SYDNEY

Carol Prior, Raymond Lampton, Raymond Gaston, Colleen Power, Raylene Oui, Tanya Chatfield, Iris Glenbar and Lenora Aldridge replace the current applicant, consisting of Margaret Smallwood, Tracey Lampton, Loretta Prior, Ray Gaston, Andrew Morrell, Janet Lymburner, Lenora Aldridge, Elsie Pryor Lymburner and Iris Glenbar. THE COURT DIRECTS THAT:
The applicant file and serve an amended Form 1 to reflect the replacement of the applicant under s 66B of the Native Title Act 1993 (Cth) and such other changes as were identified in the draft Form 1 attached to the affidavit of Ricardo Martinez affirmed on 28 October 2013 as Annexure RM1. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BETWEEN: MARGARET SMALLWOOD, TRACEY LAMPTON, LORETTA PRIOR, RAY GASTON, ANDREW MORRELL, JANET LYMBURNER, LENORA ALDRIDGE, ELSIE PRYOR LYMBURNER AND IRIS GLENBAR ON BEHALF OF THE JURU PEOPLE

AND: STATE OF QUEENSLAND & ORS (ACCORDING TO THE SCHEDULE)

JUDGE: RARES J DATE: 3 MARCH 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 On 29 October 2013, nine persons, being Carol Prior, Andrew Morrell, Raymond Lampton, Raymond Gaston, Colleen Power, Raylene Oui, Tanya Chatfield, Iris Glenbar and Lenora Aldridge, applied pursuant to s 66B of the Native Title Act 1993 (Cth) to be made the replacement applicant in lieu of the current applicant in what is known as the combined Juru application (being matters QUD 554 of 2010 and QUD 7 of 2012). The members of the current applicant are Margaret Smallwood, Tracey Lampton, Loretta Prior, Ray Gaston, Andrew Morrell, Janet Lymburner, Lenora Aldridge, Elsie Pryor Lymburner and Iris Glenbar. Mr Morrell, Mr Gaston, Ms Aldridge and Ms Glenbar are common members of both groups.

Background 2 On 1 November 2013, I ordered that the 2010 and 2012 proceedings be combined under s 64(2) of the Act and conducted as one application. The 2012 application was made over a large area that completely enclosed the much smaller area the subject of the 2010 application. The applicant in each of the two proceedings comprised the same members. 3 In early 2013, North Queensland Land Council, on behalf of the current applicant, commissioned further research by an anthropologist, Dr Kevin Mayo, to resolve issues raised by indigenous respondents to the 2012 proceedings. That anthropological research was in addition to research that had been conducted earlier by Dr Sandra Pannell. She had provided substantive research for earlier Juru claim determinations, including the consent determination in Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819. 4 The outcome of Dr Mayo's research led the Land Council to seek instructions from the claim group about whether the claim group description should include an additional apical ancestor, Rosie Wake. Following a case management conference on 18 July 2013, the current applicant decided to seek authorisation for a reconstituted claim group and other matters. On 5 September 2013, the members of the current applicant and the Juru elders met in Townsville with Dr Mayo and descendants of Rosie Wake. Following that meeting, the current applicant, with the guidance of the elders, instructed the Land Council to call an authorisation meeting of the claim group to consider, among other matters, the inclusion of Rosie Wake as an apical ancestor in the description of the claim group. 5 On 20 September 2013, the Land Council sent a letter, enclosing a notice of meeting and map of the combined claimed areas, to all the persons who were identified as claim group members in its current description, inviting them to three meetings to be held at the Corporation for Women in Townsville on Saturday 19 and Sunday 20 October 2013. The Land Council also advertised in the 21 September 2013 edition of the Courier Mail newspaper giving public notice of the three meetings. The notices described the business proposed for each of the meetings. 6 The first meeting was open to all members of the two claim groups for the 2010 and 2012 claims and its business was to determine whether, in accordance with the current anthropological research, Rosie Wake should be included as an apical ancestor in the description of the Juru native title claim group. The second meeting was called to deal with the position after those amendments either had been made or rejected, and the notice specified that, if rejected, only the members of the current description of the claim group would be able to participate, whereas if accepted, members of the extended claim group would also be able to attend. The business of the second meeting would be to determine whether the two claims should be combined, and to select and authorise individuals as members of the replacement applicant for the combined claim to determine the scope of their authority and succession plan. The notice stated that, following that process, the individuals nominated would be authorised by the members of both the current and proposed claim groups. The notice stated that the second meeting would also consider the setting up of the prescribed body corporate and a number of technical matters. The purpose of the third meeting was to consider whether to authorise whoever the applicant might be to enter into a number of indigenous land use agreements.

The meetings of 19 and 20 October 2013 7 Ricardo Martinez, a solicitor employed by the Land Council, gave unchallenged evidence as to the conduct of the three meetings that I accept. In the event, all of the resolutions were passed unanimously. Each meeting resolved to follow a decision-making process that had been used throughout the conduct of both claims. The process was based on the traditional laws and customs of the Juru people and had the following six steps: (a) the members of the claim group are called to a meeting about an important matter for decision; (b) there will be a general discussion of the issues in family groups prior to the meeting, and then at the meeting, by representatives of the families of the Juru people; (c) family representatives then consult their Elders, who lead and provide input to guide the discussion; (d) discussion continues at the meeting until there is general consensus; (e) once a decision is reached through consultation with and by the Elders, a clearly-worded statement reflecting the general consensus is read to the meeting; and (f) should the general meeting fail to reach consensus, the Elders may retire to consult with each other about the matter for decision. In those circumstances, a decision by the Elders will bind the claim group. 8 The first meeting determined to include Rosie Wake as an apical ancestor in the description of the claim group and to combine the two proceedings. 9 The second meeting was open to all of the members of the now-expanded claim group. The meeting resolved that sufficient notice had been given for decisions to be made about matters on the agenda, that it was sufficiently representative of members of the claim group to make decisions about matters at the meeting, that the claim group description be amended to include Rosie Wake as an apical ancestor and that the combination of the two claims be approved. The latter two resolutions were necessary because this was the first meeting of the expanded claim group at which descendants of Rosie Wake were present. 10 Critically, the next resolution was, relevantly, as follows: "the following persons are authorised to be the persons making up the applicant for the proposed claim" and listed each of the nine persons who originally brought the present interlocutory application, including Andrew Morrell. 11 Mr Martinez also said that: "Also passed were the following arrangements", including, "In the event of the death, unwillingness or inability to act of Andrew Morrell then David Morrell shall have authority to and is authorised to be one of the persons making up the applicant". Similar substitution arrangements applied, so that each of the other eight nominees had a name alternate if he or she were dead, unwilling or unable to act. 12 The final resolution passed at the second meeting identified a prescribed body corporate to hold the native title on trust, were the consent determination scheduled to be heard on 11 July 2014 to be granted. 13 The third meeting was also open to all members of the expanded claim group. It resolved to authorise the entry into a number of indigenous land use agreements.

A problem emerges 14 Subsequently, all of the persons named as being authorised in the resolution to be members of the replacement applicant, other than Andrew Morrell and his brother, David Morrell, prepared affidavits in accordance with s 62 of the Act. Those eight persons now seek to proceed on the interlocutory application under s 66B. Today, counsel for the current and replacement applicants sought to amend the interlocutory application by deleting from it all references to Andrew Morrell. I granted leave for that to occur. 15 On 14 February 2014, Mr Martinez swore and served an affidavit dealing with his communications with Andrew and David Morrell. He said that, on 31 October 2013, he had sent a draft affidavit dealing with the matters referred to in s 62 to Andrew Morrell for his consideration. Mr Martinez deposed to a number of subsequent communications he had had between 6 November and 20 January 2014 with Andrew and David Morrell with a view to obtaining an affidavit under s 62 by one of them to support the s 66B application. None of those communications resulted in the making of such an affidavit by Andrew or David Morrell. 16 When the matter came before me on 17 February 2013 in Brisbane, being the date I had fixed following the hearing on 1 November 2013 for the hearing of the interlocutory application under s 66B, the Commonwealth applied for an adjournment because it had only learned on the afternoon of Friday 14 February 2014 that Andrew Morrell had not yet filed an affidavit in accordance with s 62 in support of the s 66B application. The Commonwealth contended that there were conflicting decisions of single judges of the Court as to whether an order could be made under s 66B(2) where not all of the persons authorised to comprise a replacement applicant by a claim group were ready, willing or able to support the application. Accordingly, I adjourned to today to hear the matter in Townsville where, again, as on the previous occasion, many of the persons whose interests are concerned could be present in court. 17 Neither Andrew nor David Morrell was present at the authorisation meetings because of a death in their family. It is not clear whether either of them ever agreed to his nomination in terms of the resolution that was passed. But, in any event, neither has accepted that nomination. Each of the eight willing nominees made an affidavit for the purposes of s 62(1) that included, in identical terms, two paragraphs that addressed the requirement of s 62(1)(a)(iv) as follows: "Jointly with [the other eight new nominees], I am authorised by the claim group to seek an order that we replace the current applicant which consents to its replacement on the basis that it is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. Jointly with the people named … above, we are authorised by the Juru claim group to be the applicant for the Juru claim and to deal with matters arising in relation to it." 18 There is no evidence of any meeting or resolution of the current applicant, of which Andrew Morrell is a member, that resolved to consent to the replacement applicant taking its place, other than the assertion in the affidavits of the eight willing new members. However, a majority of the members of the current applicant could vote to that effect and it is clear that they did, whether or not Andrew Morrell agreed. 19 On 21 February 2014, meetings of elders of the Juru people and each of the members of the current and proposed replacement applicants occurred. Those meetings were convened following the difficulty that had arisen in Court on 17 February 2013. Both Andrew and David Morrell were present at those meetings by telephone. All of those present signed resolutions in their respective capacities, other than David and Andrew Morrell. The meetings of elders and members of the current and replacement applicants resolved that the s 66B application should proceed with only the eight nominees who had made s 62 affidavits in its support. The elders resolved that, in the time available to them before the hearing of the application to replace the applicant and the consent determination scheduled for 11 July 2014, it was not possible nor necessary to hold another full authorisation meeting. They resolved that, following consultation with their families and other Juru people, they had authority to decide, as Juru elders, what was best for the Juru people in those circumstances. They instructed their solicitor, Mr Martinez, on behalf of the Juru people, to proceed with the application to replace the current applicant with the eight willing nominees. 20 Similarly, each of the members of the current and replacement applicants, other than Andrew and David Morrell, signed a resolution noting the earlier resolution by the Juru elders and instructing their solicitor, on behalf of the Juru people, to proceed with the s 66B application with only the eight willing replacement members.

The parties' submissions 21 As the Commonwealth identified on 17 February 2014 and as was elaborated on by the State of Queensland in its helpful written submissions prepared for the hearing today, there exists a conflict between decisions of single judges of the Court as to whether it is essential that all persons who are nominated as an applicant or replacement applicant in an authorisation meeting under s 251B must pursue that together in a s 66B application. However, not all of the decisions are directly on the current point. Those decisions are, on the one hand, decisions of Logan J in Dodd v Queensland (2011) 195 FCR 65 and Mansfield J in Lennon v State of South Australia [2010] FCA 743, and on the other hand, obiter remarks by Dowsett J in Murgha on behalf of the Combined Gunggandji Claim v State of Queensland [2011] FCA 1317 approving what Siopis J had held in Sambo v Western Australia (2008) 172 FCR 271. 22 The State submitted that, although it did not consent to or oppose the grant of the s 66B application, the preferable construction of the Act was that adopted by Logan and Mansfield JJ. The Commonwealth, having seen the evidence of the meeting of elders held on 21 February 2014, said that now it neither consented to nor opposed the making of the order for replacement of the applicant. Counsel for the Commonwealth said that, in light of what had occurred in the elders' meeting, the Commonwealth considered that it was open to the Court to take the view that the elders had authorised the eight willing replacement members to be the replacement applicant, and that that is how the resolution of the earlier, second authorisation meeting nominating those who would be members of the replacement applicant could be understood.

Consideration - The legislative scheme 23 The first issue that must be resolved is how the resolution appointing persons to be members of the replacement applicant should be construed, and in particular whether it was essential that each of the nine named persons, or his or her individual named substitute, be a member of the replacement applicant named in the order of the Court under s 66B(2). 24 Before I come to the issue of construing the terms of that resolution to ascertain what the meeting intended, however, it is necessary to consider how the Act itself operates with respect to the role of an applicant. For the purposes of the Act, in a native title determination, s 61(2)(c) provides that "the person is, or the persons are jointly, the applicant" and none of the other members of the native title claim group is the applicant. A native title determination application under s 13(1) may be made relevantly by: "[a] person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group…" (s 61(1) item 1 in the table) 25 A native title claim group can authorise a person or persons to make a native title determination application and to deal with matters arising in relation to it pursuant to a process specified in s 251B. Under s 66B(1), one or more members of the native title group for a claimant application (being what s 253 defines as a native title determination application that a native title claim group has authorised to be made) may apply to the Court for an order that the member or members jointly replace the current applicant for the application on the grounds specified in s 66B(1)(a) and (b). First, the grounds in s 66B(1)(a) are that one or more of the following criteria applies or apply to a person who is, or either alone or jointly with one or more other persons is, the current applicant namely: (i) the person consents to his or her replacement or removal; (ii) the person has died or become incapacitated; (iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (iv) the person has exceeded the authority given to him or her to make the application and to deal with matters arising in relation to it. 26 Secondly, s 66B(1)(b) requires that the person or persons seeking to replace one or more or all of the current applicant must be authorised by the claim group to make the application and to deal with matters arising in relation to it. The Court may make the order if it is satisfied that the grounds in both s 66B(1)(a) and (b) have been established. 27 Importantly, the Act provides that if the claim group authorises more than one person to make a claimant application to replace the current applicant then, first, the persons are jointly the applicant for the purpose for which they were authorised to act (s 61(2)(c)) and, secondly, in the case of a replacement applicant, they must apply to the Court for an order that they jointly replace the current applicant (s 66B(1)). 28 The four criteria applicable to the person or persons, who alone or jointly are the current applicant in s 66B(1)(a), specifically apply to the circumstances when a replacement seeks to be substituted for the current one. But, nothing in s 66B requires the replacement of, or withdrawal of authority from, the current applicant merely because any of the circumstances described as criteria in s 66B(1)(a) has occurred. Thus, the Act does not provide that the remaining members of a current applicant have to be re-authorised or replaced if one or more of their number has died or becomes incapacitated (cf: s 66B(1)(a)(ii)). Even if no one who was named as a member of the current applicant remains alive, or is capable of acting on his or her original authorisation, the current applicant remains the "registered native title claimant" for the purposes of the Act, as North, McKerracher and Jagot JJ held in FQM Australia Nickel Pty Ltd v Bullen (2011) 191 FCR 261 at 270-271 [31]-[32]. They said (at 271 [32]): "the scheme provided for in s 66B assumes that an applicant who has died after registration of their claimant application is still a registered native title claimant as defined. This scheme is also consistent with s 30(2) of the Native Title Act, which provides that a person ceases to be a native title party if the person ceases to be a registered native title claimant." 29 Clearly enough, as a matter of practical reality, if only one person was authorised as the current applicant and he or she died or has become incapable, there would not be anyone who could, alone or jointly, validly carry out the functions and role for which the current applicant was authorised. That was the very situation that occurred in FQM 191 FCR 261. 30 The chapeau to s 66B(1) creates a right for one or more members of the claim group to apply to replace the current applicant, but it does not prescribe more than that. And s 66B(1)(b) requires that each such person satisfy the criterion that the member or members making the application are authorised by the claim group to do so and to deal with any matters arising in relation to it. 31 The authorisation of one or more persons by the claim group occurs under s 251B. But, that section must be read as referring to the meeting of a joint authorisation, where the claim group authorises more than one person to make an application and to deal with the matters arising in relation to it. That is because ss 61(2)(c) and 66B(1) expressly provide that where there is more than one person authorised under s 251B, those persons are jointly the applicant. Ordinarily, the appointment of two or more persons to act jointly entails that if one dies or become incapable, the remaining appointee(s) can still act and make decisions, in any event, by a majority of them, if one can be formed. 32 It is notable that the Act does not specify that, when acting jointly, the members of an applicant must be unanimous. That is a reflection of the expectation of the Act that the person or persons entrusted with the responsibility of being an applicant will often be involved in decision-making in that role. The Parliament would have been mindful that, where more than one person must decide a question, differences of view may preclude the formation of an unanimous decision, the moreso because members of an applicant will often be nominated by different interests and families within a claim group with different points of view, all of which may be entirely legitimate, yet those persons can be expected to differ on some points of importance. 33 The Act is also silent about the immediate consequences of the death or incapacity of one of the number of persons who is an applicant. It does not provide that either of those circumstances must generate or requires a new authorisation: FQM 191 FCR 261. Death or incapacity of an applicant, or one of more of the members of an applicant, is a ground that the claim group can invoke to authorise a replacement applicant under s 66B(1). But, nothing in that section suggests that the earlier authority conferred jointly on the remaining members of an applicant after one or more of them has died or becomes incapable ceases when such an event occurs. Nor does the Act require that a person be consulted before his or her appointment under s 251B about his or her preparedness to participate in a claimant application as the, or a member of the, applicant. 34 An authorisation process that selects more than one person to be the applicant or replacement under s 251B results in the claim group's conferral of its authority on those persons jointly. But, the decision does not conscript the nominees to act in the role as members of an application - rather, it authorises those persons, if they choose to apply to the Court to become members of a replacement applicant, to act jointly with the others in that role if the Court so orders.

Consideration - The construction of the authorisation resolution 35 Here, the second meeting had resolved that Andrew Morrell or, if he had died or were unwilling or unable to act, his brother, David, would be one of the "following persons" authorised jointly to be the replacement applicant and to deal with the matters arising in relation to the claimant application. Now, had all of those nine persons applied and the Court made an order under s 66B(2) that they be the replacement applicant, then if one or more of them had died the very next day, that appointment would continue in effect and the remaining members could continue to act jointly as the applicant. That is because the Act empowers all the living and competent members of a duly authorised applicant to act jointly notwithstanding that one or more of their original number may have died or become incapable after the commencement of proceedings under s 61 of the Act or the appointment of a replacement applicant under s 66B(2). 36 The question then arises as to why, in the period between authorisation under s 251B and the making of an order following an application under ss 61(1) or 66B(1), the death or incapacity of one or more of the persons that the claim group had previously nominated as authorised to act for it jointly should be fatal to the continuance of that joint authority and the authorisation of the other persons not affected by the death or incapacity. There is nothing readily discernible in the scheme of the Act to suggest that, following a valid process of authorisation, if more than one person is appointed as a member of the applicant under s 251B, the ordinary incidence of their joint authorisation ought not to operate in the event that one or more of those persons dies or becomes incapacitated before the application is made under s 61(1) or the Court makes an order replacing a current applicant under s 66B(2). 37 The purpose of the conferral of the claim group's authority on a person or persons to be an, or a member of an, applicant, is to select an individual or a number of persons who, for the purposes of s 62A, jointly may deal with all matters arising under the Act in relation to an application. Given that life is full of vicissitudes, expected and unexpected events, it is unlikely that the Parliament intended that a claim group had to make a fresh authorisation under s 251B every time one of the number of persons whom it had appointed jointly with others to act as an applicant fortuitously died or became incapacitated in the period between the authorisation meeting and the formality of the institution of the proceedings in the Court or the making of a Court order under s 66B(2). Such a construction of the Act would lead to an unduly technical and prolonged process that could frustrate bringing finality to native title claims. Indeed, it could frustrate the obtaining of evidence from persons who may have the history of the claim group in their memories but who may be frail and old, as many indigenous elders are. 38 Of course, if a claim group resolved in clear terms that its intention were that particular persons be appointed personally as representing particular families or factions within the claim group, so that the membership of the applicant as authorised could be seen to reflect a deliberate and intentional choice of individuals who were regarded as essential members to comprise the applicant, it may be that the result would be different to the one that I have come to with respect to the construction of the resolution here. In those circumstances, the issue that has divided a number of single judges of the Court would become relevant. 39 The cases have made clear that, ordinarily, the appointment of a person as a member of a composite applicant is not a personal appointment. Indeed, so much is clear from the operation of the Act where, as in FQM 191 FCR 261, all the members of the applicant died but that did not have the result that the native title application ceased to be maintainable. Those persons, although dead, remained for the purposes of the Act the applicant unless and until they were replaced. 40 However, the resolution of the second meeting appointed nine persons jointly to be the applicant and, where any of those persons had either died, become unwilling or unable to act, it provided that a named individual could be substituted for him or her as one of the persons making up the applicant. The resolution did not require that any of the original nominees or their substitutes actually accept or act on his or her nomination or appointment. There is no suggestion in the evidence that the claim group was factionalised or saw as essential that particular groups be represented by particular named persons. 41 I am of opinion that the construction of a resolution at a meeting of a claim group must be approached on the same basis as the construction of any other resolution of a body, that is, in the way in which an ordinary, reasonable person who was present at the meeting of the claim group and understood its laws and customs would have understood the words used in the resolution to have been employed. 42 Clearly enough, the meeting was cognisant that one or more of the persons initially selected might not take up the appointment prior to the Court making an order that that person be a member of the replacement applicant. Accordingly, the resolution included provisions for substitutes. However, neither Andrew nor David Morrell was present at the meetings, nor were members of their family. It seems highly unlikely that the meeting would have intended, in passing the resolution in the form that it did, that if neither of Andrew or David Morrell was willing to take up the authorisation and act as a member of the applicant, that the whole process would have to start again. 43 The substitution provision, in my opinion, should be understood in the context in which the meeting occurred. The meeting decided to select persons to who would be able to continue to pursue the application in the future with a view to progressing it to a consent determination and to do the other things which s 62A gave an applicant authority to do, being to deal with all matters in relation to the application, including the entry into indigenous land use agreements, if need be. An ordinary, reasonable person with knowledge of the laws and customs of the claim group would have not understood that the resolution, as passed, could be frustrated if any one of the nine named persons or his or her substitute was not able to take up the appointment. In such a scenario, for example, if both of the principal nominee and his or her substitute, unfortunately, died before the Court made an order under s 66B, the hypothetical attendee would not have understood the resolution to require that the whole authorisation process would have to be revisited and a new authorisation meeting held at great inconvenience and expense. 44 In my opinion, the resolution provided that each of the named persons or, in the event of their death, unwillingness or inability to act, their named substitutes, would have authority to act jointly with the others as a member of the replacement applicant. However, it went no further than that those persons had the claim group's permission and authority to act jointly with the others as members of the applicant but none was required to take up the appointment for any reason, including that he or she not wish to do so. So much is clear from the resolution's advertence to unwillingness in its introductory part, preceding the naming of the substitutes. 45 Of course, it would have been better had the resolution gone on to deal with the unwillingness of a substitute to act. But, I am of opinion that ordinary reasonable members of the claim group would have understood that what they were voting on was a sensible arrangement to ensure that a number of persons would be authorised jointly and, if any one or more of them was willing, to take up the appointment, those persons jointly would conduct and progress the claim on behalf of the claim group as the replacement applicant. It could hardly have been their intention that if the death, unwillingness or incapacity of an individual occurred the day after the Court ordered the replacement of the applicant, the remaining persons would, as the Act provides, have been able to continue jointly to be the applicant, but that the whole process would be unravelled in the event that this unfortunate event occurred the day (or at any other time) before the Court's order. 46 In my opinion, the conferral of authority in the resolution, on its proper construction, did not make it essential that each of the named persons or his or her substitute take up that authority. 47 It may be that, if I am wrong in that construction, there is something to be said for the Commonwealth's suggestion that the resolution of the elders on 21 February 2014 could provide evidence as to how the ordinary and traditional decision-making processes of the Juru people would be understood to operate in the circumstances that occurred. 48 Accordingly, it is not necessary for me to resolve the dichotomy of views between other single judges because, on the construction of the resolution at which I have arrived, it was open to both David and Andrew Morrell not to pursue seeking their inclusion as a person to be made a member of the replacement applicant under s 66B of the Act.

Formal matters 49 The evidence of Mr Martinez satisfies me that proper notice was given for the business of each of the three meetings sufficient to support the making of the resolutions for the replacement of the applicant, for the inclusion of Rosie Wake as an apical ancestor and for the other business conducted by each of the three meetings. I am satisfied that each of the three meetings was validly conducted. 50 There is no reason why I should not make an order under s 66B(2) as now sought by the eight continuing applicants. I am satisfied that the current applicant, by the resolution of its members, without the agreement of Andrew and David Morrell, on 21 February 2014, consents to its replacement and that by reason of the resolution of 19 October 2013, the current applicant is no longer authorised by the claim group to make the application and deal with matters arising in relation to it and that the eight continuing ones are so authorised. 51 Accordingly, I will make the order sought under s 66B(2) in its amended form. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 7 April 2014 SCHEDULE QUD 554 OF 2010 BETWEEN: MARGARET SMALLWOOD, TRACEY LAMPTON, LORETTA PRIOR, RAY GASTON, ANDREW MORRELL, JANET LYMBURNER, LENORA ALDRIDGE, ELSIE PRYOR LYMBURNER AND IRIS GLENBAR Applicant AND: STATE OF QUEENSLAND First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent WHITSUNDAY REGIONAL COUNCIL, BURDEKIN SHIRE COUNCIL, ERGON ENERGY CORPORATION Third Respondent PAUL CURTEIS, MELLASANNE GRAY, NOEL GRAY, KAREN QUADRELL, MATT QUADRELL, NATHAN RYNN, TRAVIS RYNN, GFB DEVELOPMENTS PTY LTD Fourth Respondent ENERGY MINERALS PTY LTD Fifth Respondent QR NETWORK PTY LTD, QRN PROPERTY PTY LTD, HANCOCK COAL INFRASTRUCTURE PTY LTD Sixth Respondent TELSTRA CORPORATION LIMITED Seventh Respondent ENERGY WORLD CORPORATION LTD Eighth Respondent VARIOUS PASTORALISTS Ninth Respondent PAUL AND CHRISTINE BENVENUTI Tenth Respondent JANINE AND JULIAN LANDO, GAIL AND RICHARD SAINSBURY Eleventh Respondent PACIFIC REEF FISHERIES (BOWEN) PTY LTD Twelfth Respondent JOSEPH HENAWAY Thirteenth Respondent CECILIA UPKETT Fourteenth Respondent JAN GRANSHAW Fifteenth Respondent LONDA AND PETER DAHL Sixteenth Respondent ROSARIA SGROI Seventeenth Respondent

Native Title Act 1993(Cth)ss 66B, 251B

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Judgment (15 paragraphs)

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Cases Cited (6)

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