Smirke on behalf of the Jurruru People v State of Western Australia

Federal Court of Australia|2020-10-01|Before: Barker J, Mortimer J

Ivan Smirke, Kellman Limerick and Alec Alexander jointly replace the current applicant to the Jurruru native title determination application.
The Applicant is given leave to amend the Form 1 in accordance with the Minute of Amended Native Title Determination Application filed on 3 July 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 The Jurruru applicant has filed applications in WAD 537 of 2018 (Jurruru #1) and WAD 538 of 2018 (Jurruru #2). These claims are overlapping with WAD 490 of 2016 (Yinhawangka Gobawarrah) and were subject to a separate question hearing pursuant to orders made by Barker J on 23 February 2018. The separate question hearing has been heard and judgment is currently reserved. 2 The applicant seeks orders: (a) replacing the existing applicant with a new applicant constituted by different individuals, under s 66B of the Native Title Act 1993 (Cth); and (b) granting leave to amend its claim for a determination of native title in each proceeding, under r 8.21 of the Federal Court Rules 2011 (Cth). 3 The applicant relies on affidavits of each of member of the proposed new applicant, as well as an affidavit of Greg Young, a lawyer with the Yamatji Marlpa Aboriginal Corporation. The applicant also filed written submissions in support of the application. 4 The interlocutory application was served on the State and on the Yinhawangka Gobawarrah applicant in WAD 490 of 2016. The Yinhawangka Gobawarrah applicant confirmed via email correspondence to the Court on 21 July 2020 that it did not oppose the applications and did not wish to appear at the interlocutory hearing. The State also confirmed it did not oppose the applications. 5 However, given the somewhat unusual circumstances - in particular the significant delay between the authorisation meeting relied on by the applicant and the filing of the application, as well as the fact that the application was brought many months after the conclusion of the separate question hearing - I considered it was appropriate to list the application for a hearing rather than determining it on the papers.

Background 6 The authorisation meeting at which, on the applicant's case, the claim group authorised the replacement of the applicant and amendment of the Form 1 in each proceeding was held on 21 March 2019. Before the meeting, in February 2019, Mr Young caused notices to be posted to the members of the Jurruru claim group and caused a notice advertising the meeting to be published in regional newspapers. 7 Twelve members of the claim group attended the meeting, which Mr Young deposes was more than the average for meetings of the claim group. I accept the Jurruru claim group is a numerically small group. The attendees resolved to replace the applicant and amend the Form 1 in each proceeding in the manner sought by the interlocutory applications before the Court. The members of the proposed new applicant are Ivan Smirke, Kellman Limerick and Alec Alexander. Mr Smirke and Mr Limerick are members of the current applicant. The amendment of each Form 1 was intended to "update largely administrative portions" of the forms. No party submits that there was any defect in the notification process, the conduct of the meeting or in the authorisation of the new applicant. 8 Not long after the authorisation meeting, in July 2019, the Court heard the parties' lay evidence on country in the separate question hearing. Expert evidence was heard in December 2019 and the parties made closing submissions in February 2020. Regrettably, it was not until 3 July 2020 that the applicant filed its interlocutory applications seeking replacement of the applicant and amendment of each Form 1 in accordance with the resolutions made at the authorisation meeting on 21 March 2019.

Relevant legislation 9 Section 66B of the Native Title Act provides: Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant: (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; (iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. Court order (2) The Court may make the order if it is satisfied that the grounds are established. Federal Court Chief Executive Officer to notify Native Title Registrar (3) If the Court makes the order, the Federal Court Chief Executive Officer must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant. Register to be updated (4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order. 10 Rule 8.21 of the Federal Court Rules provides: (1) An applicant may apply to the Court for leave to amend an originating application for any reason, including: (a) to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or (b) to avoid the multiplicity of proceedings; or (c) to correct a mistake in the name of a party to the proceeding; or (d) to correct the identity of a party to the proceeding; or (e) to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding started, or has acquired since that time; or (f) to substitute a person for a party to the proceeding; or (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. (2) An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1) (c), (d), (e) or subparagraph (g) (i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. (3) However, an applicant must not apply to amend an originating application in accordance with subparagraph (1) (g) (ii) after the time within which any statute that limits the time within which a proceeding may be started has expired.

Resolution 11 I recently considered an application for replacement of an applicant and amendment of a Form 1 in Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983, albeit in circumstances where the applications were contested. 12 As I explained at [76], the conditions for an order to be made were authoritatively set out by French J in Daniel v State of Western Australia [2002] FCA 1147; 194 ALR 278 at [17]: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. 13 With respect to amendment of the Form 1, the applicant in the Warral & Ului case sought orders under s 64(1A), rather than r 8.21. That subsection provides: An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.) 14 At [70], I said: The present applicant does not seek "to reduce the area of land or waters covered by the application". It may therefore be that the applicant should have sought leave to amend the application not under s 64(1A) of the Native Title Act but under r 8.21 of the Federal Court Rules 2011 (Cth): see Melissa Perry and Stephen Lloyd, Australian Native Title Law (Lawbook, 2nd ed, 2018) at [64.10]. However, neither the joinder applicant nor the State made any submissions about this, and I am prepared to proceed on the apparently agreed basis that s 64 is engaged. 15 I adopt those comments here. 16 On their face, the applications that are currently before the Court are uncontroversial. Where such applications are unopposed, it may be appropriate to determine them on the papers. What was troubling about the present applications is that well over a year passed between the authorisation meeting and the filing of the interlocutory applications, and in that time the Court heard and reserved its judgment in the separate question hearing. This meant, I infer, that the applicant as presently constituted gave instructions throughout the conduct of the separate question hearing, despite the re-authorisation meeting in March 2019. 17 It remains unclear why this was allowed to happen. During the hearing of the interlocutory applications, the Jurruru applicant's legal representative provided an explanation to the effect that the applicant's representatives were preoccupied with the separate question hearing. In the absence of any contrary indication, the Court proceeds on that basis. 18 Nonetheless, the passage of time since the authorisation meeting raises a number of issues with which the Court would have had to grapple if there had been any objection to the interlocutory applications. 19 First, where an application to replace an applicant or amend a Form 1 is filed many months or even, as here, more than a year after the authorisation meeting, there may be a question whether the claim group still authorises the amendments at the time of the Court's decision, even if there is no question that the claim group authorised the amendments at the time of the authorisation meeting. 20 Second, in the unusual circumstances now before the Court, where a separate question hearing was held between the authorisation meeting and the filing of any interlocutory application, questions may arise as to the conduct of the separate question hearing and, specifically, who was giving instructions and what their authority was to do so. 21 The applicant submitted that s 66B should be construed as providing that, where an applicant is proposed to be replaced, it remains authorised until that replacement is completed. That would avoid having a situation where, for a time, there is no applicant which is both authorised by the claim group and on the Court's record as the applicant in the proceeding. On the other hand, there may be difficulty reconciling such a construction with the apparent intention of s 61(2)(d) and s 62A of the Act. 22 However, in circumstances where no party has submitted that the amendments now sought have not been properly authorised, and no party has taken issue with the conduct of the separate question hearing and the authorisation of the applicant during that hearing, it is not necessary to explore those issues. If there had been objections, it may well have been appropriate for the Court to rely on s 84D(4) of the Act, which allows the Court to hear and determine the separate question proceeding, and this interlocutory application, despite any defect in authorisation. 23 The evidence before the Court is that reasonable steps were taken to notify every member of the claim group about the authorisation meeting. Moreover, there is nothing to suggest that the conduct of the meeting, and the decision-making process in particular, was such as to cast doubt upon the claim group's authorisation. 24 I am satisfied that each member of the proposed new applicant is a member of the claim group, that the members of the current applicant other than those who are also members of the proposed new applicant are no longer authorised to deal with matters arising in relation to the native title application, and that the members of the new applicant are so authorised. I am also satisfied that the new applicant is authorised to amend the Form 1 in each proceeding in the terms sought in the interlocutory applications. 25 The applicant sought orders setting out the grounds for the replacement of the applicant. During the hearing, I proposed a shorter form of order, which the applicant was content with. There will be orders accordingly. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Native Title Act 1993(Cth)ss 61, 62A, 66B, 84D

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