Walker on behalf of the Yaegl, Bundjalung and Gumbaynggirr People v Minister for Land & Water Conservation

REASONS FOR JUDGMENT 1 On 27 November 1996 a native title claim under the Native Title Act 1993 (Cth) ('the NTA') was lodged with the National Native Title Tribunal ('the NNTT') by Della Laurie Walker and Joyce Caroline Clague (nee Mercy) on behalf of the Yaegl, Bundjalung and Gumbaynggirr people. According to the form of application, the other persons with whom the applicants claimed to hold native title were: 'All members of the Yaegl, Bundjalung and Gumbanyggirr peoples who are affiliated with the lands and waters which are the subject of this application.' In most of the documents, the spelling 'Gumbaynggirr' is adopted. 2 Under the Native Title Act as it then stood ('the Old Act') a native title determination application could be made by a person or persons claiming to hold the native title either alone or along with others. Under the Old Act, there was no requirement that an applicant have the authority of the native title claim group before making an application on behalf of that group: Daniel v State of Western Australia [2003] 194 ALR 278 at [11]. 3 In 1998 the NTA was significantly amended introducing new criteria for native title applications. The NTA as so amended is referred to hereafter as 'the New Act'. Under transitional provisions of the New Act, the application lodged with the NNTT is taken to have been made to the Federal Court (Table A, Part 3, Item 6 Case 1). Under Part 9, Item 36, that means that the application is to be treated as if it were made to the Federal Court under the relevant provisions of the New Act. However, these transitional provisions do not provide that an application that was made to the Registrar under s 61 of the Old Act is taken to comply with the requirements of the New Act. Thus even if an application satisfied the requirements of s 61 of the Old Act, it will still be required to satisfy the requirements of s 61 of the New Act: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 at [10]. 4 Under s 61(1) of the New Act, a native title determination application may be made by a person authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claim. Those persons are defined as the native title claim group. Under s 61(2) of the Act, the authorised persons are jointly the applicant; not the other members of the native title claim group. 5 Under s 61(4), a native title determination application that persons in the native title claim group authorise the applicant to make must either name those persons, or describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. Under s 61(5) an application must be in the prescribed form, ie in the form of Form 1 in the Native Title (Federal Court) Regulations 1998. 6 Under s 62(1)(a) of the New Act, the application must be accompanied by an affidavit sworn by each applicant: '(iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and …' 7 Section 251B of the New Act provides: 'For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.' The applicants have applied on motion for an order that the native title application be amended in accordance with a form of application attached to the affidavit of Mr Neumann sworn on 25 June 2003. That application is opposed by those of the respondents who are members of the NSW Farmers Association and by the NSW State Minister. The application is opposed because those respondents contend that the proposed amended application does not comply with the provisions of s 61(1), 62(1) and 64(5) of the New Act. 8 Section 64(5) of the New Act is as follows: '(5) If a claimant application … is amended so as to replace the applicant with a new applicant, the amended application shall be accompanied by an affidavit sworn by the new applicant: (a) that the new applicant is authorised by the other persons included in the native title claim group, to deal with matters arising in relation to the application, and (b) stating the basis on which the new applicant is authorised as mentioned in paragraph (a).' 9 Schedule S to the proposed amended application indicates that the application has been amended in nine respects. Only three are controversial. They are as follows: 1. add five further applicants; 2. clarify on whose behalf the application is brought; and 9. clarify the manner in which the applicants have been authorised to make the claim. 10 As to (1), Della Walker (nee Laurie) and Joyce Caroline Clague (nee Mercy) remain as applicants. Five other persons are joined as applicants. As to (2), the native title claim group on whose behalf the application is made is described in Schedule A as follows: 'The Native Title Claim Group comprises the Yaegl descendants of:- Dugald Cameron (who was born in Chatsworth Island around 1870) Jack Freeburn (who was born in Yamba around 1868) Sailor Morris (who was born in Chatsworth Island around 1831) Nodo Combo (who was born in Yamba around 1859) Rose Combo (nee Yamba) (a.k.a. as Rosie Yamba and who was born in Yamba around 1856) Being both biological descendants and descendants adopted under Yaegl traditional law and custom who identify themselves as Yaegl and who are recognised by the claimant group as Yaegl.' As to (9), Schedule R is as follows: '(a) The applicants are members of the native title claim group and are authorised to make this application, and to deal with matters arising in relation to it, by all other persons in the native title claim group. (b) (i) A meeting of members of the native title claim group, including Elders of the native title claim group, and convened, notified and advertised by NSW Native Title Services Ltd as being open to all members of the native title claim group was held at Angourie Rainforest Resort, Angourie on 21 and 22 June 2003 for the purpose of authorising applicants for the claim and this amended application. (ii) At that meeting, all members of the native title claim group present, including all Elders present, authorised the applicants to make this application and to deal with all matters arising in relation to it. (iii) At the meeting referred to in paragraph (i), all the members of the native title claim group present, including all Elders present, authorised the applicants to amend this application in the manner set out in Schedule S hereto. (iv) The decisions made at the meeting referred to in paragraph (i) were made in accordance with the traditional decision making processes of the Yaegl people.' 11 Attached to the proposed amended application are affidavits or affirmations from each of the seven applicants. Each deponent asserts that he/she is a member of the native title claim group, that he/she is authorised by all the persons in the native title claim group to make the application and to deal with all matters arising in relation to it, and that the basis on which the deponent and the other applicants to make the amended application is set out in Schedule R to the amended application and includes a meeting of the members of the native title claim group at Angourie on 21 and 22 June 2003. 12 The amended application is brought on behalf of the Yaegl people. That is the native title claim group, and the applicants assert that they are authorised by that native title claim group to bring the amended application. There is no reference in the proposed amended application to the Bundjalung or Gumbaynggirr people who figured in the original application. It is clear that the authorisation relied upon includes a meeting of the members of the Yaegl people held on 21 and 22 June 2003. There is no reference to any meeting of, or including, the Bundjalung or Gumbaynggirr people. 13 The respondents identify as the fundamental defect in the proposed amended application the fact that the amended application changes the description of the native title claim group by eliminating references to the Bundjalung and Gumbaynggirr people without this change being authorised by all members of the existing native title claim group (prior to the amendment). Authorisation by those who will form the new and more restricted native title claim group is insufficient. In the respondents' submission, if this were not so, then the application would no longer be authorised by and made on behalf of the native title claim group referred to in s 61(1). The respondent's submission overlooks the fact that the communal authorisation was not required for the original application. 14 There is or may be a factual question as to whether the native title claim group described in the original application as 'all members of the Yaegl, Bundjalung and Gumbaynggirr Peoples who are affiliated with the land and waters which are the subject of this application' is the same native title claim group as is described in the proposed amended application as the Yaegl descendants of Dugald Cameron, Jack Freeburn, Sailor Morris, Nodo Combo and Rose Combo 'being both biological descendants and descendants adopted under Yaegl traditional law and custom who identify themselves as Yaegl and who are recognised by the claimant group as Yaegl'. However, the applicants have not filed any evidence to this effect, despite suggestions that they should do so. I consider that I should proceed upon the assumption that the native title claim group described in the proposed amended application is different from the native peoples referred to in the original application, as that is the natural inference which one would draw from the different descriptions of the two groups absent evidence to the contrary. 15 The authority for allowing an amendment to the application is s 64 of the New Act and Order 13 r 2 of the Federal Court Rules: Strickland v Western Australia (1999) 89 FCR 117 at [9]. It would be consistent with settled principle to refuse to allow an amendment if the amended application, if allowed, would be struck out under s 84C of the New Act. 16 But the fact, assuming it to be a fact, that the proposed amended application is not brought on behalf of, or with the authority of the same people on whose behalf the original application was brought, is not fatal to its formal validity. The 'applicants' for the purpose of the application for leave to amend are the two persons who filed the original application: s 61(2). The purpose of the application for leave to amend is to bring the application into conformity with the requirements of the New Act. One of the matters that needs to be attended to in order to achieve that result is the identification of a native title claim group who have authorised particular persons to bring the application. That was not a requirement of the Old Act. That group is identified in the proposed amended application as the Yaegl people, and those persons are identified as the seven proposed applicants. 17 Section 64(5) does not apply in the circumstances of the present case. An original applicant is not replaced by a new applicant. The original applicants remain, but others are added. Nor is s 66B of the New Act relevant, because there is no application by any claim group to replace an applicant. 18 For these reasons, I reject the respondents' contention that it is essential to the validity of the amended application that it should be authorised by the native groups referred to in the original application. As no other ground of opposition to the amendment was advanced, I propose to allow the amendment. There is a correspondence between the native title group on whose behalf the amended application is brought, and the group which authorised the amended application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.