Walmbaar Aboriginal Corporation v State of Queensland

Chronology of events 12 On 8 December 1997, the Court made the Hopevale determination. The Court determined, consistent with a Deed of Agreement executed by all relevant participants, that the native title rights and interests the subject of the determination were held by the common law holders of the 13 clan groups, including the Dingaal clan, for their respective clan estates (cl 1 of the determination). Since the common law holders sought and the Court determined that the native title rights and interests were to be so held, no determination was made that those rights be held on trust by a prescribed body corporate. 13 By cl 5 of the determination, pursuant to s 57(2) of the Act, Phillip Baru was required as representative of the common law holders of the Dingaal clan to nominate within six months a prescribed body corporate to perform the functions described in s 57(3) of the Act. Section 57(3) is in these terms: (3) After becoming a registered native title body corporate, the body must perform: (a) any function given to it as a registered native title body corporate under particular provisions of this Act; and (b) any function given to it under the regulations (see section 58). 14 By cl 14 of the Deed, the Dingaal clan was to apply under the Aboriginal Councils and Associations Act 1976 (Cth) ("the ACA Act") for incorporation of Walmbaar for the purposes of s 57 of the Native Title Act 1993 and to nominate Walmbaar, once incorporated, as the body to perform the functions described in s 57(3) of the Act. The remaining 12 clans agreed to incorporate Hopevale Congress Aboriginal Corporation as a prescribed body corporate for those clans for the purposes of s 57 of the Act. 15 Walmbaar was incorporated pursuant to the ACA Act on 28 August 1998 as a registered native title body corporate. Walmbaar is also governed by the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). 16 The "Rules" of the Walmbaar Aboriginal Corporation contain these provisions. INTERPRETATION 2. In these Rules - … "Common Law Holders" means each of the persons set out in attached schedule "A" provided such persons are, and only whilst they remain, a member of the Corporation. Those listed in the schedule are all adult persons who hold native title under Federal Court determination QG 174 of 1997, in the case of Deeral v Charlie. "DINGAAL COUNTRY" is land, waters, sea and islands traditionally owned by the Dingaal people, in the vicinity of Cape Flattery in far north Queensland; in accordance with the custom and tradition of the Dingaal people. "DINGAAL CLAN" and "DINGAAL People" and "DINGAAL community" mean all persons born of a Dingaal father, or Aboriginal children adopted by a Dingaal father. A "Dinagaal father" is a male person of patrilineal descent of the Baru, Yoren or Charlie families. "DINGAAL Family" means Yoren, and/or Baru and/or Charlie families of Hope Vale and their patrilineal descendants. "DINGAAL Elders" means a member[s] who demonstrate a consistency of attachment to DINGAAL issues and country; who demonstrate leadership; have extensive cultural knowledge; have knowledge of appropriate cultural behaviours; are politically aware; command respect in the DINGAAL community; and have knowledge and communication skills required to liaise between the Dingaal Community and wider State and Federal authorities; and who is nominated by a Dingaal family and accepted by the Dingaal Community and all existing Dingaal Elders (if any). There shall be a register of Elders maintained by the Public Officer. … OBJECTS 6. The objects for which the Corporation is established are: (1) (i) The principal object of the Corporation is to act as agent for the Dingaal people in obtaining, holding and managing DINGAAL country; and (ii) To act as the Prescribed Body Corporate through which DINGAAL people can meet their duties and responsibilities for their country. (2) (i) This Corporation is established for the purpose of being the subject of a determination under Sections 56 & 57 of the Native Title Act. A purpose of this Corporation's existence is becoming a registered native title body corporate as set out under the Native Title Act (1993) and its Regulations. (ii) This Corporation shall act as agent of the common law holders in respect of matters relating to the native title; and (iii) Manage the native title rights and interests of the common law holders as authorised by the common law holders and perform any other functions in relation to the native title rights and interests as directed by the common law holders. … (3) To secure legal tenure over DINGAAL country. (4) To form a Committee which can: (i) Service areas where Native title and Aboriginal tenure may be obtained; (ii) Conserve and manage Dingaal country. POWERS 7. The Corporation shall, subject to the provisions of the Act, have power to do all such lawful things as may seem to the Committee necessary to carry out the objects of the Corporation. … 9. (1) In relation to the performance of its functions as a Prescribed Body Corporate, this Corporation shall make decisions regarding native title by notifying all common law holders of decisions to be made and after one week notice, convene a meeting of common law holders and obtain the consent of 75% of the common law holders in relation to the performance of its functions and changing of the Rules. (2) Consent of 75% of the common law holders will constitute the consent of the Dingaal Clan and this Corporation. [emphasis adopted by the Rules document] MEMBERSHIP 11. (1) Membership of the Corporation shall be open to adult Aboriginal persons who are DINGAAL people as noted on a genealogical record kept by the Public Officer. A register of members for the time being shall be kept by the Public Officer. (2) The genealogical record of DINGAAL descendants kept by the Public Officer shall be certified by at least two (2) registered DINGAAL Elders and may only be amended by the Committee with the written consent of two registered DINGAAL Elders. The Elders Group shall confirm certifications of amendments to the genealogical record. If confirmation is not forthcoming, amendments shall be null and void. The Elders group shall confirm or deny certification within 30 days of receiving an application. (3) A member shall cease to be a member: (i) if that member shall die; (ii) if that member shall by notice in writing resign from membership. (4) From the date of incorporation the members on attached Schedule A are members of the corporation. … COMMITTEE 12. (1) Subject always to the control of the Corporation in General Meeting, the Committee shall manage and control the affairs of the Corporation in accordance with these Rules and with the Act [Aboriginal Councils and Associations Act 1976] and for that purpose may exercise the powers of the Corporation as if they had been expressly conferred on the committee by a general meeting of the Corporation. (2) The members of the Committee (minimum five members) shall be elected at the first general meeting of the Corporation and … thereafter at each annual general meeting and shall be eligible for re‑election … (3) A member of the Committee shall cease to hold office (i) if he dies, or (ii) ceases to be a member of the Corporation by resigning from the Corporation, or (iii) if he resigns his office, or (iv) under s.73 of the Act an administrator is appointed, or (v) if by reason of infirmity, absence or any other reason the Corporation is of the opinion that he has ceased to be an effective member of the Committee. SCHEDULE "A" WALMBAAR ABORIGINAL CORPORATION list of members and adult common law holders Rodney Yoren Kevin Yoren Mervin Yoren Belinda Yoren Margaret Gregory Vernon Yoren Elaine McGreen Susan Bally Christine Yoren Vernon (Ned) Yoren Alwyn Yoren Jacklyn Yoren Gary Yoren Eugene Yoren Roy Yoren Warren Yoren Grace Yoren Norris Baru Phillip Baru Amanda Baru Elaine Baru Margaret Baru Pam Baru Henry Baru Kenny Baru Rita Harrigan Phyllis Greenway Gordon Charlie Patricia Charlie Stanley Charlie Dan Charlie Louie Charlie John Charlie Allan Charlie

17 These individuals listed in Schedule A are the leading members of the Baru, Yoren and Charlie families. Each of the indigenous respondents other than Brian Cobus is a member of Walmbaar. 18 On 25 February 2002, Beaumont J made a further order in the Hopevale determination proceeding directing, by Order 5, that Walmbaar "is the prescribed body corporate which, after becoming a registered native title body corporate, will perform the functions mentioned in s 57(3) of the Native Title Act 1993 for the Dingaal Clan". The reason for the long delay between that order and the Hopevale determination of 8 December 1997 is not clear. 19 Differences of opinion emerged between Gordon Charlie and others on the one hand and members of the Baru and Yoren families on the other as to whether the Dingaal People comprise descent members of the Baru and Yoren families notwithstanding the definitional matters contained in the Rules of Walmbaar ([16], Interpretation). For example, a notice convening a meeting for 21 June 2005 of "all Dingaalwarra and Biddi‑Baru members" to be held at "Gungarde Office" in Cooktown was issued to Walmbaar members signed by Gordon Charlie at which meeting a resolution was to be proposed that Phillip Baru, Elaine McGreen and all Baru and Yoren members be expelled from Walmbaar and that "all Yoren and Baru descent members who are members of [Walmbaar] resign [their membership] as they belong to another clan and are not Dingaal clan descendents". The notice contained a pro forma notice of resignation and a commentary that Baru and Yoren family members are members of a separate clan called the Biddi‑Baru clan. The meeting did not take place. Neither Phillip Baru nor Elaine McGreen nor any member of the Baru and Yoren families resigned their membership of Walmbaar. 20 Consistent with the notion that Baru and Yoren family members form part of a different clan, steps were taken in 2005 to incorporate under the ACA Act a corporation described as Biddi‑Baru Aboriginal Corporation which by rule 2 of its Rules defines native title holders in respect of relevant land as members of the Baru and Yoren families from the Cape Flattery area. Mr Testro, a legal officer employed by the Land Council, deposes in his affidavit that members of the Baru and Yoren families did not establish the Biddi‑Baru Corporation; they continue to assert membership of Walmbaar on the footing that they are members of the Dingaal clan as recited in the Rules of Walmbaar; and they are seeking to establish who caused the new corporation to be formed on that footing. 21 The position adopted in the notice signed by Gordon Charlie was consistent with Gordon Charlie's contentions before Cooper J in 2003 in Dingaal Tribe v State of Queensland and Ors [2003] FCA 999 that "under the traditional law and customs of the Dingaal people, he is the only person entitled, and thereby authorised, to make the claim for native title on behalf of the claim group" (at [14]). In that proceeding (QG6004 of 1998), Gordon Charlie and Jonathon Charlie as joint applicants sought a native title determination in respect of particular lands and waters on behalf of the Dingaal tribe. Gary Yoren, Ned Yoren, Elaine Baru and Louis Charlie applied pursuant to s 66B of the Act for an order that Yoren, Yoren and Baru replace Gordon Charlie and Jonathon Charlie as applicants on the footing that resolutions passed at a meeting at Hopevale on 14 April 2003 removed the authority of the existing applicants to maintain the claim on behalf of the claimant group. Cooper J found that notice of meeting had been given directly or indirectly to all members of the Dingaal claim group and that there was no traditional law or custom binding on the claim group preventing them from terminating the authority of Gordon Charlie and Jonathon Charlie (at [17] and [20]). Cooper J concluded that the authority of Gordon Charlie and Jonathon Charlie to continue to act as applicants had been withdrawn by resolution of the meeting of the Dingaal clan and accordingly orders were made replacing Gordon Charlie and Jonathon Charlie with Gary Yoren, Ned Yoren and Elaine Baru. 22 Proceeding QG6004 of 1998 was a claim by the Dingaal People of native title rights and a claim of connection with Lizard Island and the islands offshore from Cape Flattery (and associated waters). On 28 February 2006, Dingaal clan members convened at the Church Hall in Hopevale to consider a presentation in relation to the claim by the National Native Title Tribunal, a report and presentation by a consultant anthropologist, Dr Fiona Powell, and a presentation on future tasks to be undertaken by the Land Council. The claim group members unanimously resolved to amend the claim to include other claimant groups asserting rights in relation to the land and waters, namely, the Thanil, Nguuruumungu, Gulaal, Ngaatha and Thittaar Peoples. That resolution made necessary an amendment to the application so as to alter the area of land and waters the subject of the claim and the composition of the claim groups. The Land Council sought to convene a meeting of Dingaal members on 31 October 2006 at 11.00am at Hopevale to authorise amendments to the native title application. Gordon Charlie sought to restrain the conduct of the meeting that morning on the footing that the Charlie family incorporates a sub‑group family described as the Brim family and members of that family had not been invited to the meeting nor incorporated within the claim. The Brim family members were said to be in tension with the Baru and Yoren families. Gordon Charlie was unsuccessful in his application for an injunction (Gordon Charlie v Cape York Land Council [2006] FCA 1418). 23 The meeting did not proceed on 31 October 2006 due to the death of Mr Gary Yoren, an applicant member of the Dingaal claim group. The authorisation meeting was reconvened for 29 November 2006 and 30 November 2006 at Hopevale. Gordon Charlie sought to restrain the meeting on the morning of 29 November 2006. He did so based on the contention that the Baru and Yoren People are not part of the Dingaal clan. He contended that Brim family members are part of the Dingaal clan through Charlie family members and therefore seven identified members of the Brim family and some family members associated with some of those individuals, ought to have been invited to the meeting. Gordon Charlie contended that Brim family members ought to be joined in the claim; they derive their rights through identified Charlie clan members; and Baru and Yoren families are not members of the Dingaal clan. In that proceeding, Dr Fiona Powell swore an affidavit concerning her extensive anthropological research in relation to the Dingaal claim. Dr Powell said that she had revealed no evidence which suggested a connection between the Charlie family and the Brim family or connections on the part of the Brim family to the area claimed in the Dingaal application. Dr Powell identified the foundation for that view. 24 The relevance of that proceeding for present purposes is simply that Gordon Charlie continued to assert a different composition of or foundation for the Dingaal clan notwithstanding the Hopevale determination and the terms recited in the Rules of Walmbaar adopted by Gordon Charlie and other Charlie family members. First, the Dingaal clan was said to properly embrace the Brim family and secondly, the Baru and Yoren families were said not to be part of the Dingaal clan. Gordon Charlie was unsuccessful in the injunction application (Gordon Charlie v Cape York Land Council (No. 2) [2006] FCA 1683). 25 In that proceeding, Gordon Charlie contended that a meeting of Dingaal native title clan members and some non‑members took place at Cooktown at the "Lions Park" on 3 July 2005. The meeting was said to have passed a number of resolutions including a resolution that only Charlie family members have standing to maintain a Dingaal clan native title claim. The minutes of the contended meeting record the attendance of Vernon Yoren, Henry Baru, Elaine Baru, Phyllis Greenway (nee Baru) and Kevin Yoren. However, the evidence of a Hopevale Lutheran Minister, Reverend Jantke, who presided at the relevant burial services and who had possession of Lutheran Church records, demonstrated that all of those individuals had died well before 3 July 2005 which caused the Court to conclude that the minutes of the meeting and contentions in relation to the meeting were unreliable. 26 That evidence, of course, was relevant only for the purposes of the proceeding in question. However, the fact of that controversy in that proceeding remains a relevant historical fact in explaining the subsequent chronology of events by which the resolution of the intra‑indigenous issues concerning the composition of the Dingaal clan were sought to be resolved. 27 As to proceeding QG6004 of 1998, the applicants sought and obtained leave of the Court on 24 June 2008 to discontinue that proceeding. 28 On 28 November 2008, Walmbaar commenced this compensation proceeding in its capacity as a prescribed body corporate and agent for the Dingaal People and in contended conformity with ss 58(c) and 61(1) of the Act and its objects and rules. The lands and waters the subject of the application are not simply the lands and waters of the Hopevale determination. That determination comprises Lot 35 on Crown Plan BS222 which is the subject of the Land Trust created by the Queensland Government in 1986 under the Land Act 1962 as the Deed of Grant in trust described in the Hopevale Determination Deed as the Dogit land. The Walmbaar application extends to Lot 9 on Crown Plan BS222, Lot 10 on Crown Plan BS224 and Lot 11 on Crown Plan BS268. 29 Actions of extinguishment or significant impairment of the native title rights said to be attributable to the State of Queensland are set out at Schedule I of the application including the grant of leases to Ports Corporation of Queensland and the grant of mining leases including a mining lease in favour of Cape Flattery Silica Mines Pty Ltd ("CFSM") over 584.6 hectares on part of Lot 35 of Crown Plan BS222. A compensation entitlement is asserted against the State of Queensland and the Commonwealth on just terms or by reference to the similar compensable interest test having regard to 15 heads of claim (Schedule J). Walmbaar also claims, for the Dingaal People, non‑monetary compensation. 30 The application was supported by an affidavit sworn by Gordon Charlie on 22 November 2006 also filed on 28 November 2006. In it, Gordon Charlie swears that he is the chairman of Walmbaar; Walmbaar as prescribed body corporate for the purposes of the Hopevale determination makes the application "for the compensation claim group … as agent for the Dingaal People as common law holders [pursuant to the Act]"; and, by paras 6 and 7 he says this: 6. The Walmbaar Aboriginal Corporation is authorised by the compensation claim group to make the application in accordance with Clause 9 of its rules and objects by way of a resolution passed by more than 75% of its member common law holders at an Annual General Meeting which took place at Cooktown on 3 July 2005. 7. On behalf of the applicant corporation I am authorised to say and do believe that all of the statements made in the application are true. 31 The issue of the composition of the Dingaal clan and thus the Dingaal claim group remained controversial. On 26 October 2006, in the context of the meeting convened by the Land Council for 31 October 2006 previously mentioned, Mr Peter Black, solicitor, had written to the Land Council advising that he acted for "the Charlie family who are the Dingaal People" and expressed concern that the Kuranda Charlies (that is, the Brim sub‑group) had not been given notice of the meeting. On 23 July 2007, in this proceeding, Mr Black wrote to the Land Council and said: Our client has not sought to exclude your clients from the compensation process. Our client as agent of the Dingaal People has an obligation to hold any compensation gains in trust for the benefit of all Dingaal People including your clients. Accordingly, our client is prepared to include your clients as applicants in the compensation proceedings. 32 On 18 February 2008, Walmbaar filed an applicant's work plan in the Court. By that plan, it undertook to complete the following steps in preparation for a mediation conference to be convened in March 2008 so as to resolve the intra‑indigenous issues concerning the composition of the Dingaal clan and the process by which Walmbaar obtained its approval to commence the proceeding. Walmbaar's plan involved these steps. 2. Applicant's work Plan (December 2007 - September 2008) 2.1 The Applicant is to attend to the following steps prior to a further mediation conference to be convened in March 2008 between the indigenous parties: 2.1.1 The Applicant is to provide further details of the authorisation process to the Cape York Land Council ("CYLC") and the National Native Title Tribunal ("NNTT"). 2.1.2 The Applicant is to provide submissions to the CYLC and the NNTT showing how the Brim family are connected to the Charlie family. … 2.2 The Applicant is to attend further mediation meetings with the other indigenous parties in accordance with a time table to be developed in conjunction with the NNTT. 33 On 26 February 2008, Mr Black wrote to the Land Council in relation to the work plan and said this: In order to demonstrate the connection between the Charlie Family and the Brims our client has secured the services of an alternate anthropologist to prepare a preliminary report. Our client does not accept that Dr Powell can bring an objective perspective to the Charlie/Brim issue in circumstances where it was her work in the first instance which led to the exclusion of those Brims who are related to the Charlies from the Dingaal group. The anthropologist will also show that the Baru and Yoren families are not Dingaal. [emphasis added] 34 Mr Black in his letter of 26 February 2008 said that those matters would "impact upon" who might properly be regarded as members of the Elders group of the Dingaal clan and members of Walmbaar. He said "still further they impact on the authorisation process for which you require anthropological certification". 35 On 24 April 2008, the Court made orders for the filing of affidavit material in relation to the intra‑indigenous issue of the composition of the Dingaal clan in the expectation that the matter might be resolved as a preliminary question. The Court made these orders: … 2. The Applicant file and serve an affidavit setting out the details of the authorisation process followed to authorise the Applicant to commence these proceedings, by 23 May 2008. 3. The Applicant file and serve material which describes the connection between the Brim and Charlie families, by 23 May 2008. 4. The Applicant file and serve material which details the process engaged in to include the Brim family as members of the Walmbaar Aboriginal Corporation, by 23 May 2008. 5. Any party wishing to file and serve material in reply to the Applicant's documents filed in compliance with Orders 2 - 4, do so by 6 June 2008. … 36 The proceeding was stood over to 24 June 2008 for further directions. At the directions hearing the Court made the following orders: 1. The proceeding is adjourned to 2:15pm on 5 September 2008 at Cairns to consider an application brought by the respondents that the proceeding be dismissed. 2. Any further affidavit material to be relied upon by the respondent parties in support of an application for dismissal of the proceedings shall be filed and served by 31 July 2008. 3. The Applicant in the proceeding shall file and serve any affidavit material upon which it proposes to rely in answer by 24 July 2008. 4. The respondents shall file and serve any affidavit material responsive to any further affidavits of the Applicant on which they propose to rely by 8 August 2008. 5. Any supplementary submissions shall be filed by 22 August 2008. … 37 Mr Black has filed three affidavits on the motion on behalf of Walmbaar. Mr Black says that he has taken instructions from Mr Gordon Charlie and Ms Ruth Schaefer, the Public Officer of Walmbaar. Mr Black deposes to Mr Charlie's concern that Dr Powell has not sufficiently consulted with the Brim family or Mr Charlie to obtain an oral history of the relevance or relationship of the Brim family to the Charlie family. Mr Black refers to preliminary work of Dr Pannell which he says suggests such a connection. 38 On 11 February 2008, Mr Black wrote to the Land Council in relation to the authorisation process. Mr Black enclosed a copy of Gordon Charlie's affidavit filed in support of the application on 28 November 2006 which "dealt with the authorisation process". Mr Black said that the applicant "relies on the matters set out therein". Those matters, at para 6, were that Walmbaar was authorised by the Dingaal claim group to make the application by reason of a resolution passed by more than 75% of the Dingaal common law holders at an annual general meeting which took place at Cooktown on 3 July 2005. On 28 May 2008, the applicant filed a further affidavit of Mr Black which annexed a letter from Mr Black to the Land Council dated 27 May 2008 (PZB‑1) which sets out the content of the authorisation process adopted by Walmbaar (and the legal rationale for that process), for the purposes of the Court's Order of 24 April 2008. 39 Neither Gordon Charlie nor Ruth Schaefer depose to the facts of the authorisation process. 40 Mr Black, on behalf of Walmbaar, puts the authorisation process on this basis. 41 Walmbaar is the registered native title body for the Dingaal People under the Hopevale determination. The common law native title holders of the Dingaal People nominated Walmbaar to be the prescribed body corporate to perform the functions described in s 57(3) of the Act. Thus, Walmbaar acts with the authority of the common law native title holders as agent for the Dingaal People. The authorisation process prescribed by s 251B of the Act does not apply, it is said, to a compensation application by a prescribed body corporate. The s 251B process is said to be required where there is no prescribed body corporate and the section is addressed only to individual persons who require authorisation to act as applicants for, relevantly here, a compensation claim group. The functions of Walmbaar as a prescribed body corporate and agent for the Dingaal People are set out in the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) ("NT (PB) Regulations"). Regulation 8(2) of those regulations provides that Walmbaar must consult with and obtain the consent of the common law holders in accordance with the decision‑making process agreed or adopted by them for making a "native title decision", as defined by Regulation 8(1). The decision‑making process adopted by the common law holders for Walmbaar when it makes a native title decision is set out in cl 9(1) of Walmbaar's Rules which provides that Walmbaar shall convene a meeting of common law holders and obtain the consent of 75% of them if "decisions regarding native title" are to be made. Walmbaar's decision to commence an application for a compensation determination is not a "decision regarding native title" or a "native title decision". The Rules of Walmbaar should be so understood by reference to Regulation 8(1). The decision to file and prosecute a compensation application does not involve a decision falling within Regulation 8 of the NT (PB) Regulations as the decision does not involve the surrender of native title rights and interests in relation to land or waters, nor is it an act which would impinge on or change the native title rights or interests of the common law holders, which, it is said, are the integers defining a native title decision for the purposes of Regulation 8 and Walmbaar's Rules. The claim for compensation does not affect native title rights and interests but simply seeks compensation for the effect of other acts upon those rights. Thus, the decision to commence and prosecute an application for a compensation determination, fell to be decided by the Committee of Walmbaar pursuant to its powers in cls 7 and 12(1) of Walmbaar's Rules. The Committee met on 4 July 2006 at Mantaka and passed a resolution to proceed with a compensation claim. The compensation application was then filed on 28 November 2006. These propositions represent Walmbaar's position. 42 As to the Brim/Charlie connection, Mr Black said that the Charlie family had exercised traditional control over the northern region of Cape Flattery. The Charlie family is known traditionally as the Dingaal. The Baru and Yoren families are not Dingaal. The Guugu Yimidhirr family group known as the Birri Biddi Baru traditionally exercised control over the southern region of Cape Flattery and are the clan of the Baru and Yoren families. Mr Black says that the Charlie family recognises the Brim family as Dingaal People. Brim family members applied to Walmbaar in writing for membership of the Corporation. Walmbaar amended the genealogical record to incorporate the Brim family by a decision of Gordon Charlie and Patricia Charlie as Dingaal Elders. 43 The letter from Mr Black does not identify any further facts relating to the decision taken on 4 July 2006 at Mantaka. Nor does the letter identify whether any members of the Baru or Yoren families were consulted in relation to the acceptance of Brim family members as Dingaal members of Walmbaar. The letter seems to abandon the claim made in the affidavit of Gordon Charlie sworn 22 November 2006 in support of Walmbaar's application that Walmbaar is authorised to bring the compensation application by reason of a resolution passed by more than 75% of Walmbaar's member common law holders, passed at an annual general meeting at Cooktown on 3 July 2005. Walmbaar now says that it was not necessary to consult with the common law native title holders nor obtain a resolution supported by 75% of those members in order to make a decision to institute the proceeding. Rather, the decision to file and prosecute a compensation determination application is a matter for the Committee exercising its powers under the Rules. 44 Rule 9(1) is set out at [16] of these reasons. However, its terms provide that Walmbaar in relation to the performance of its functions as a prescribed body corporate shall make decisions regarding native title by notifying all common law holders of decisions to be made and after one week's notice, convene a meeting of common law holders and obtain the consent of 75% of them in relation to the performance of its functions and changing of the rules. Rule 9(2) provides that the consent of 75% of the common law holders, will constitute the consent of the Dingaal clan and this Corporation. For the purposes of the Rules of the Corporation and the Hopevale determination, the Dingaal clan means all persons born of a Dingaal father or Aboriginal children adopted by a Dingaal father and a Dingaal father is a male person of patrilineal descent of the Baru, Yoren or Charlie families. The Dingaal family means the Yoren and/or Baru and/or Charlie families of Hopevale and their patrilineal descendents. There can be no doubt that in performing its functions as a prescribed body corporate for the purposes of the Hopevale determination, decisions taken by Walmbaar "regarding native title" are to be made by notifying "all common law holders" of decisions to be made and securing, at a duly convened meeting, the consent of 75% of them to the decision. 45 The Rules of Walmbaar do not define the phrase "decisions regarding native title". The Rules are to be construed and interpreted in a way which gives effect to the important practical consideration that decisions regarding the native title rights and interests of the common law holders as determined by the Hopevale determination are to be taken at all times with the interests of all common law holders kept firmly in mind. Decisions taken by Walmbaar regarding the native title rights and interests secured by the Dingaal People by the Hopevale determination are to be taken with the overwhelming support (75%) of the members comprising the Dingaal clan. Nothing could be more plain. 46 A decision to institute a proceeding to seek and obtain a compensation determination in relation to those matters identified particularly at Schedules E, I and J of the application, under the provisions of the Act, and the analysis in that proceeding of the amount of compensation by reference to just terms or the similar compensable interest test in respect of acts said to have either extinguished or significantly impaired or otherwise affected the native title rights and interests of the Dingaal People as determined by the Court on 8 December 1997, is a decision "regarding" native title. The scope of an application under s 50(2) can be seen in the criteria to be applied under s 51(1) for determining compensation. Section 51(1) provides that subject to subsection (3) the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests. A decision to commence a proceeding for compensation and engage, on behalf of the native title holders, an analytical process which seeks to identify any loss, diminution, impairment or other effect of an act on their native title rights and interests is necessarily a decision regarding native title for the purposes of Rule 9(1). The use of the word "regarding" in the context of the Rules and the functions to be performed by Walmbaar is necessarily a word of wide application. It is intended to have a wide application, in its context (DPP v Webb [2000] NSWSC 859 at [17] to[29] per O'Keefe J). 47 There is no sound basis for importing the definition of "native title decision" in Regulation 8(1) of the NT (PB) Regulations into the construction of the Rules of Walmbaar either directly or analogically. The scope and operation of Regulation 8(1) is discussed shortly. 48 Accordingly, the decision to institute a compensation application ought to have been made in accordance with the decision‑making requirements of Rule 9 of Walmbaar's Rules. The decision to commence proceedings was taken by the Committee of Walmbaar on 4 July 2006. There is simply no evidence of whether the common law members were given notice of the proposed decision; or of whether they expressed views about it or were engaged by the Committee in any formal or informal consultation process. The Committee members are not identified. Neither Gordon Charlie nor Ruth Schaefer filed any affidavit on the motion notwithstanding that each of them might have spoken directly to the events in issue. No minutes of the meeting are produced. Walmbaar has changed its position by, in effect, abandoning Gordon Charlie's original contention that the decision to commence the proceeding was the subject of a resolution of 75% of the common law holders obtained at a meeting on 3 July 2005. That position that was relied upon not only by Gordon Charlie in his affidavit sworn on 22 November 2006 but also by him on 11 February 2008 by reason of Mr Black's letter of that date asserting reliance on the resolution. Walmbaar contends in submissions that there are two decisions which confer authority to institute the application. The first is the resolution at the meeting on 3 July 2005 and the second is the decision of the Committee made on 4 July 2006. Walmbaar says that the only evidence concerning a vote by common law holders is the evidence of Gordon Charlie contained in his affidavit of 22 November 2006. However, the primary contentions of Walmbaar which are recited in Mr Black's letter, rather than the subject of an affidavit by Gordon Charlie as to the facts, place reliance upon the authority of the Committee and the decision it took on 4 July 2006. The Committee cannot act independently of the decision‑making process contained in Rule 9. Rules 6(1) and 6(2) of Walmbaar's Rules which set out the objects taken in conjunction with Rule 12 which sets out the powers of the Committee, do not confer power upon the Committee to make decisions regarding native title without complying with Rule 9(1). 49 By s 57(3)(b) of the Act, Walmbaar "must perform" any functions given to it under regulations made under s 58 of the Act. There is no suggestion that the regulations made under that section are beyond the subject matter of the power in s 58. Regulation 7(1) of the NT (PB) Regulations provides that for the purposes of s 57(3)(b) of the Act, Walmbaar has the following functions: (a) to act as agent or representative of the common law holders in respect of matters relating to those rights and interests; (b) to manage the rights and interests of the common law holders as authorised by the common law holders; and … (e) to consult with the common law holders in accordance with regulation 8. [emphasis added] 50 By Regulation 8(1), a "native title decision" means a decision: (a) to surrender native title rights and interests in relation to land or waters; or (b) to do, or agree to do, any other act that would affect the native title rights or interests of the common law holders. [emphasis added] 51 By Regulation 8(2), Walmbaar as agent or representative of the common law holders of native title rights and interests "must consult with, and obtain the consent of, the common law holders in accordance with this regulation before making a native title decision". By Regulation 8(4), if there is a particular process of decision‑making that, under the Aboriginal traditional laws and customs of the common law holders, must be followed in relation to the giving of consent in relation to a native title decision, the consent must be given in accordance with that process. If there is no such process, the consent must be given by the common law holders in accordance with the process of decision‑making agreed to or adopted by them for the proposed native title decision or for decisions of the same kind as that decision (Regulation 8(5)). 52 The process adopted by the common law holders of the native title rights and interests determined by the Hopevale determination is the decision‑making process reflected in Rule 9(1) of the Rules of Walmbaar. Walmbaar must consult with and obtain the consent of the common law holders in accordance with that process before making a "native title decision". The decision in question is a decision to commence in the Court an application for a compensation determination. That decision is not one that involves the surrender of native title rights and interests in relation to land or waters (Regulation 8(1)(a)). However, is it a decision to do "any other act that would affect the native title rights or interests of the common law holders"(Regulation 8(1)(b))? 53 Section 227 of the Act provides for the purposes of the Act and the NT (PB) Regulations that an act affects native title if it extinguishes the native title rights and interests or "if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise". The filing of a compensation application does not extinguish native title rights and interests and is not, it seems to me, otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. Engaging in an act of the kind described in s 226 of the Act may be wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests and may therefore have the effect contemplated by s 227 of the Act. However, a decision to file a compensation application simply seeks a compensation entitlement under the Act in respect of acts which are said to have either extinguished or significantly impaired or otherwise affected native title rights and interests. 54 Accordingly, a decision to file a compensation determination application is not a "native title decision" for the purposes of Regulation 8 of the NT (PB) Regulations. 55 It follows that no statutory obligation is cast upon Walmbaar by operation of Regulations 8(2) and 8(5) to consult the common law holders in accordance with the decision‑process contained in Rule 9(1) of Walmbaar's Rules in relation to a decision to commence the compensation proceeding, as that decision is not a native title decision as defined by Regulation 8(1). However, Regulation 7(1)(a) requires Walmbaar to act as the agent of the common law holders "in respect of matters relating to" the native title rights and interests of the common law holders. Regulation 7(1)(b) requires Walmbaar to manage those rights and interests as authorised by the common law holders. Walmbaar must do so by operation of s 57(3)(b) of the Act. Regulation 7 expressly contemplates s 57(3)(b). The management by Walmbaar of the native title rights and interests of the common law holders as agent for them in respect of matters relating to those rights engages an obligation (by operation of s 57(3)(b) and Regulation 7(1)) to manage decision‑making to commence a compensation determination application by ensuring compliance with the decision‑making process contained in Rule 9(1), as the source of the authority in Walmbaar to commence the proceeding. 56 The indigenous respondents also place emphasis upon s 251B of the Act which addresses the notion of "authorising" the making of particular classes of application. Section 61(1) of the Act recognises that a compensation application under s 50(2) may be made by a registered native title body corporate where such a body is in place. Section 61(1) also recognises that apart from a registered native title body corporate, "a person or persons" authorised by "all the persons (the compensation claim group)" who claim to be entitled to compensation, may make a compensation application to the Court provided that the person or those persons are also included in the compensation claim group. Section 61(1) of the Act contains a table which sets out applications that may be made under Division 1 of Part 3 of the Act to the Federal Court "and the persons who may make each of those applications". As to an application under s 50(2) for a determination of compensation, the table identifies the "persons who may make application" in these terms: (1) The registered native title body corporate (if any); or (2) A person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group. Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the compensation claim group. 57 Section 61(2) provides that in the case of a compensation application made by a person or persons authorised to make the application by a compensation claim group, the person is, or the persons are jointly, the applicant and none of the other members of the compensation claim group is the applicant. 58 Section 251B(a) provides that all persons in a compensation claim group authorise a person or persons to make a compensation application if, where there is a process of decision‑making under the traditional laws and customs of the persons in the compensation claim group that must be complied with, the persons in the compensation claim group "authorise the person or persons to make the application and to deal with the matters in accordance with that process". 59 Section 251B(b) provides that where there is no such traditional decision‑making process, the persons in the 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 … 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". 60 Section 251B is directed to the decision‑making method by which authority is conferred upon a person or persons seeking to maintain a native title determination application or a compensation determination application under the Act, that is, by the application of traditional laws and customs or as otherwise agreed and adopted, where no traditional laws and customs determine a method of decision‑making. Such persons are authorised as a function of compliance with the traditional laws and customs governing the conferral of authority or where no such traditional laws or customs exist, as a function of a decision‑making process agreed to and adopted by persons comprising the compensation claim group. Section 61(1) of the Act however uses the term "the persons" in the primary part of subsection (1) as a description of the "persons who may make an application" as described in the schedule. In other words, the section itself seems to treat a registered native title body corporate as "a person" in which event s 251B(b) would contemplate authority being conferred upon Walmbaar as an applicant person in accordance with "a process of decision‑making agreed to and adopted by the persons in the compensation claim group" recognising that at all times Walmbaar is acting as the agent of the common holders who comprise the persons in the compensation claim group. Having regard to the terms of the Hopevale determination and the statutory obligation upon Walmbaar to discharge the s 57(3)(b) functions including Walmbaar's obligation under Regulation 7(1) to manage the rights and interests of the common law holders in accordance with the process adopted by them for conferring authority upon Walmbaar, s 251B(b) may well have a role to play in determining whether Walmbaar, in commencing the compensation application proceeding, had authority to do so. The decision‑making process conferring that authority is the process contained in Rule 9(1) of Walmbaar's Rules. However, it is not necessary to decide that question. I accept that the primary focus of s 251B is directed to the process by which individuals acquire an authority to commence and maintain the classes of applications contemplated by that section. Apart from s 251B(b), Walmbaar has failed to comply with Rule 9(1) of its Rules and has failed to discharge its functions arising under s 57(3)(b) and Regulation 7(1) of the NT (PB) Regulations. The decision to commence the compensation proceeding was thus taken without authority and in contravention of the Act. 61 In addition, the claim as framed goes beyond the land and waters the subject of the Hopevale determination. Before a determination as to compensation can be made by the Court in respect of relevant lands and waters, there must first be a determination of native title in relation to those lands and waters (Jango and Ors v Northern Territory and Ors (2006) 152 FCR 150 per Sackville J; Jango v Northern Territory (2007) 159 FCR 531 at [66] - [74] and [83] per French, Finn and Mansfield JJ). To the extent that the compensation application goes beyond the land and waters the subject of the Hopevale determination, it must necessarily fail. Walmbaar concedes that the compensation application would need to be amended to remove any claim in respect of Lot 9 on Crown Plan BS222 Lot 10 on Crown Plan BS224 and Lot 11 on Crown Plan BS268. 62 Having regard to Walmbaar's failure to commence the compensation application proceeding without authority and the considerations reflected in these reasons, the application is to be dismissed pursuant to s 84C of the Act. Walmbaar contends that the applicants on the motion are not entitled to an order dismissing the proceeding as the Notice of Motion recites s 84D as the source of power. Walmbaar contends that the applicants ought not be given leave to seek an order under s 84C. Walmbaar has not been able to identify any prejudice arising out of the applicant's relying upon an alternative source of power.

63 The costs of the application and the proceeding are reserved for determination in the light of further submissions. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate: Dated: 29 May 2009 Counsel for the Applicant: Applicant appeared by its solicitor

Solicitor for the Applicant: Mr P Black, Black & Co, Lawyers

Counsel for the State of Queensland: Ms H Bowskill

Solicitor for the State of Queensland: Crown Solicitor

Counsel for Indigenous Respondents (Applicants on the Motion): Ms S Phillips

Solicitor for Indigenous Respondents (Applicants on the Motion) Cape York Land Council

Solicitor for the Commonwealth of Australia: Mr B Powell, Australian Government Solicitor