Williams on behalf of Danggan Balun (Five Rivers) People v State of Queensland

REEVES J: 1 The Danggan Balun (Five Rivers) People have applied under s 66B(1) of the Native Title Act 1993 (Cth) (the NTA) to replace the authorised applicant for their native title determination application (the claimant application) filed on 27 June 2017. The application is brought by the proposed replacement applicant and is not opposed by the existing authorised applicant. 2 In addition, the proposed replacement applicant has sought leave under r 8.21 of the Federal Court Rules 2011 (Cth) (the Rules) to further amend the amended claimant application. That proposed amendment has been authorised by both the current Danggan Balun claim group and the proposed amended Danggan Balun claim group. 3 The State of Queensland neither consents to, nor opposes, the application to replace the existing authorised applicant, but it does consent to the proposed amendments to the claimant application. 4 Before considering these two applications, it is convenient to record some aspects of the recent history of this proceeding. First, at a case management hearing conducted on 7 February 2020, the present application was listed for hearing on 24 April 2020. On 19 March 2020, that hearing was adjourned as a part of the Court's response to the Corona Virus Disease 2019 (COVID-19) pandemic. About a week later, the parties were asked whether they were willing to have the application dealt with on the papers. On 1 April 2020, after they agreed to that course, orders were made for the exchange of supporting materials and outlines of submissions. Under those orders, the replacement applicant and certain of the Indigenous respondents (the ninth, tenth, fifteenth, sixteenth, seventeenth, twenty-sixth, twenty-eighth, twenty-ninth, thirtieth and thirty-third respondents) represented by ESJ Law (referred to hereinafter as the ESJ Law respondents) filed outlines of submissions, but the State of Queensland did not. 5 Next, it is convenient to briefly outline the following factual context to this application. On 15 February 2020, two separate authorisation meetings of the Danggan Balun People were held. The first was attended by the current Danggan Balun claim group and the second by the proposed amended Danggan Balun claim group. At the second meeting, a resolution was passed which removed the authority of the existing authorised applicant and appointed seven people to be the authorised applicant in its place, that is, the proposed replacement applicant mentioned above. 6 There are four common members of the existing authorised applicant and the proposed replacement applicant. They are Mr Gordon "Ted" Williams, Mr Shaun Davies, Ms Germaine Paulson and Mr Anthony Dillon. Each of the members of the proposed replacement applicant is a member of the proposed amended Danggan Balun claim group. 7 At the second meeting, the proposed amended Danggan Balun claim group also resolved that the proposed amendments should be made to the claimant application. Those amendments reflected the changes to the existing authorised applicant, incorporated the results of some further anthropological research presented to the Danggan Balun claim group and included sundry additional changes, the details of which are not presently material. 8 Prior to passing the resolutions mentioned above, consistent with the terms of s 251B(a) of the NTA, the existing Danggan Balun claim group (at the first meeting) and the proposed amended Danggan Balun claim group (at the second meeting) determined by resolution that there was no decision-making process that, under the traditional laws and customs of the Danggan Balun claim groups, must be complied with. Having so resolved, each group then agreed to, and adopted, a decision-making process in accordance with s 251B(b) of the NTA. 9 The sole contention of the ESJ Law respondents in respect of the authorised applicant replacement aspect of this application concerns the former resolution. Specifically, they claimed that the Danggan Balun People do have a decision-making process under their traditional laws and customs which should have been followed at both meetings on 15 February 2020 in accordance with s 251B(a) of the NTA. Accordingly, they claimed the resolution passed at those meetings to replace the existing authorised applicant was invalid. In support of this claim, they pointed to [61(g)] of Attachment F to the proposed amended claimant application which, they submitted, contains a "compelling description of a tribal wide decision making process following traditional law and custom". 10 In response, the proposed replacement applicant submitted that, while the Bora council and the parallel women's council may have existed in the past, neither council currently exists. Further, they contended that there is no evidence that such councils were ever required to make decisions about authorising an applicant to bring and prosecute a native title claim. 11 As for the amendment aspect of this application, in addition to their contention with respect to the invalidity of the decision-making process above, the ESJ Law respondents claimed that part of the application was flawed because it was beyond the ambit of r 8.21, specifically that the reason for the amendment was not one of those listed in that rule. In addition, they contended that the amendments proposed to change the substantive nature of the claim by including two additional apical ancestors, and consequently their descendants. They contended that those two apical ancestors, namely Kitty Sandy and John "Johnny" Bungaree, should not be so included because the authorised applicant (both existing and replacement) had not established any association or connection between each of those ancestors and the claim area. 12 As well, they contended that the two meeting process that was adopted on 15 February 2020 did not afford them procedural fairness because the descendants of Kitty Sandy and John Bungaree were prevented from participating in the first meeting during which it was resolved that they should be added to the Danggan Balun claim group. They contended that the composition of the Danggan Balun claim group ought, therefore, to be determined at a separate hearing. Finally, the ESJ Law respondents contended that, if leave were granted to amend the claimant application, the Court is obliged to refer the application to the National Native Title Registrar who is then required to consider whether the application passes the registration test. 13 In response, the proposed replacement applicant contended that an application may be made to amend an originating application under r 8.21 "for any reason" and that reason was not limited to the inclusive list of reasons in subrules (a) to (g) of that rule. The balance of the matters raised by the ESJ Law respondents were, it contended, not issues for determination on an application for leave to amend, but instead were matters to be determined at trial. 14 The principles bearing on an application to replace an authorised applicant under s 66B of the NTA are well-established. In this respect, the most frequently cited judgment is that of French J in Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147 (Daniel), where his Honour set out the following five conditions for a successful application, one of which (condition 4), is an alternative (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. In addition to these conditions, the Court has a discretion to exercise in deciding whether to grant an application of this kind. 15 Alternative condition 4 does not arise in this matter and there is no dispute that conditions 1 and 2 have been met. The ESJ Law respondents' opposition is focused entirely on the validity of the authorisation by the Danggan Balun claim group, which is central to conditions 3 and 5. They claim that process was fundamentally flawed because it did not follow the decision-making process which, they claim, existed under the traditional laws and customs of the Danggan Balun claim group in accordance with s 251B(a). The ESJ Law respondents have not themselves advanced any evidence to show that such a decision-making process exists under the traditional laws and customs of the Danggan Balun claim group. Instead, they have relied solely on [61(g)] of Attachment F to the proposed amended claimant application. That paragraph relevantly provides as follows: 61. … (g) There existed an institution of the Bora council of senior men as a means of high-level decision-making. According to Gaiarbau Willie Mackenzie, a member of the northern Yagarabal-Waka-Kabi neighbours he described two levels of decision making in which the [B]ora council of senior men receives the initiates from the tribal council. Major matters that concerned the tribe as a whole were referred to the tribal council which consisted of about ten men and a Muningburum (head man) who was appointed by the Bora Council and who acted under their jurisdiction … A separate women's council also existed in parallel to the senior men of the male Bora council; … (Emphasis in original) 16 There is a number of reasons why this paragraph does not establish that a traditional decision-making process currently exists under the traditional laws and customs of the Danggan Balun claim group. The first is that the opening words "[t]here existed" make it relatively clear that the author is describing a custom that was followed in the past. The Bora council, both men's and women's, is not therefore described as an existing decision-making process under the traditional laws and customs of the Danggan Balun claim group. 17 The second is the evidence contained in the two affidavits of Ms Jessica Ling filed in support of this application. Ms Ling is a lawyer employed by Queensland South Native Title Services, the native title representative body that is assisting the existing and proposed replacement applicants in this application. In her affidavits, Ms Ling stated that the Danggan Balun People have, to date, met on three occasions to consider, among other things, the authorisation of an applicant to pursue the claimant application on their behalf. Those occasions were, initially prior to the claimant application, on 13 May 2017; then again on 25 August 2018 to authorise a replacement applicant for the initial authorised applicant; and, finally, on 15 February 2020 to authorise the present proposed replacement applicant for the existing, or aforementioned, replacement applicant. Most importantly, Ms Ling deposed that, on each of those occasions, the Danggan Balun People passed a resolution confirming that there was no process of decision-making under their traditional laws and customs that must be complied with in relation to the authorisation of the claimant application and they then passed a resolution which agreed to, and adopted, a decision-making process to be used to make decisions at those meetings. Consistently with this approach, the procedure that was followed at the most recent set of meetings on 15 February 2020 was described in Ms Ling's first affidavit and in the record of resolutions passed at that meeting which formed an annexure to her affidavit. 18 At the first of those meetings, Ms Ling described in her affidavit the following: 26. Mr Martinez and I provided legal advice to the claimants present regarding the requirements of section 251B of the NTA, advising that if there is a process of decision-making that, under the traditional laws and customs of the native title claim group, must be complied with in relation to authorising the Applicant to make the Application, including amending the Application, then they must use that process. And if no such process must be used, the Claim Group must agree to and adopt a process of decision-making for the meeting. 27. Following the delivery of legal advice regarding the section 251B requirements, there was discussion amongst those present about whether or not a traditional decision-making process must be used. At the end of that discussion, the Claim Group passed a resolution confirming that there was no traditional decision making process that must be used in making decisions of the kind relating to authorising amendments to the Application, and confirmed that the agreed to and adopted process of decision-making for the meeting would be as follows: (a) the decision to be made must be presented in the form of a clearly worded written motion which must be displayed and read out to the meeting; (b) the motion must be moved and seconded by members of the Claim Group present at the meeting before it is decided on; (c) the motion must be voted upon by a show of hands of the members of the Claim Group present at the meeting who are at least 18 years of age; (d) the motion will pass only if the number of votes in favour are more than the number of votes against the motion, and abstentions do not count as a vote for or against. 19 Furthermore, at the second meeting on that day, Ms Ling described the following process: 38. Mr Martinez and I provided legal advice to the Claim Group regarding the requirements of section 251B of the NTA, in the same manner as provided at Authorisation Meeting #1 and outlined at paragraph 26 above. 39. In the same manner as outlined at paragraph 27 above, the Claim Group passed a resolution confirming that there was no traditional decision making process that must be used in making decisions regarding the Application, and confirming that the agreed to and adopted process of decision-making for the meeting would be the same adopted process used in Authorisation Meeting #1. 20 At this point, I interpolate to note that the two-step process followed at these meetings to change the constitution of a claim group and to re-authorise a claim on behalf of that reconstituted claim group is consistent with that which I described in Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746 (Doctor) at [57], relying on two earlier decisions of Dowsett J (Kudjala People v State of Queensland [2006] FCA 1564 at [13]-[15] and Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 at [14]). It follows that I reject the contentions of the ESJ Law respondents that this process involved a denial of procedural fairness to the descendants of Kitty Sandy and John Bungaree (see at [12] above) and that the composition of the Danggan Balun claim group should "be determined at a separate hearing". In this respect, it is appropriate to note that the composition of a claim group is a matter which is peculiarly within the remit of that group (see Doctor at [64]). 21 To return to the present application, I consider Ms Ling's evidence as outlined above shows that the members of the existing and proposed Danggan Balun claim groups duly considered the requirements of s 251B of the NTA at the meetings on 15 February 2020 and validly determined that there was no traditional decision-making process which they had to follow and instead agreed to, and adopted, a decision-making process which they did follow. That being so, I do not consider there is any merit in the ESJ Law respondents' opposition to this aspect of this application. It follows that the proposed replacement applicant has, in my view, met conditions 3 and 5 in Daniel above. It follows that it has met all four of those conditions. Furthermore, in the circumstances outlined in the affidavits of Ms Ling, I consider it is appropriate to exercise my discretion to replace the existing authorised applicant with the proposed replacement applicant in accordance with the wishes of the Danggan Balun claim groups as expressed at those meetings. 22 Turning, then, to the amendment aspect of this application, the ESJ Law respondents' first ground of opposition, namely the claimed invalidity in the authorisation process, is rejected for the same reasons as those set out above. The second group of opposition is equally unmeritorious. It is that the amendment application falls outside of the ambit of r 8.21 of the Rules because it does not fall within the list of reasons in that rule. Rule 8.21 provides: 8.21 Amendment generally (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. (Note omitted) 23 That proposition is unmeritorious because it has been held that the words "any reason including" in the chapeau to this rule are sufficiently broad to encompass a wide range of circumstances which could justify an amendment (see McGraw-Hill Financial, Inc v Clurname Pty Ltd (2017) 123 ACSR 467; [2017] FCAFC 211 at [23]-[24] and applied by me in Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 3) [2020] FCA 401 at [15]). Hence, the reason does not need to fall within the list of reasons in r 8.21(1)(a) to (g) inclusive. 24 In this instance, the fact that the reconstitution of the Danggan Balun claim group was based on anthropological advice and that occasioned the need for the newly constituted Danggan Balun claim group to authorise an applicant to pursue the claim as reconstituted on its behalf provided sufficient reasons for the proposed amendment within the terms of r 8.21. 25 As for the balance of the ESJ Law respondents' contentions, I consider the proposed replacement applicant is correct that they all concern matters that fall to be determined at the trial of the claimant application and do not fall to be determined on an application of this kind. 26 For these reasons, I propose to grant leave to the proposed replacement applicant to file the proposed amendment claimant application. 27 Since the ESJ Law respondents' opposition to each aspect of this application is not sustainable, I propose to make orders in the form of [1] to [3] (inclusive) of the interlocutory application filed on 12 March 2020. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

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