CONSIDERATION
24 As a general proposition, the authorisation of the persons constituting the native title applicant in respect of a claim under the Native Title Act is by the native title claim group in accordance with the provisions of s 251B of the Native Title Act. Materially, s251B provides that:
where there is a process of decision-making that must be complied with under traditional laws and customs of the claim group, the native title applicant must be authorised by the claim group in accordance with that process (s251B (a)), however
where there is no such process, the members of the claim group may authorise the native title applicant in accordance with a process of decision-making agreed to or adopted by the claim group (s251B (b)),
25 In circumstances where one or more members of the claim group comprising the native title applicant is unable to act, there is authority that the remaining members of the native title applicant are authorised to deal with all matters arising under the Native Title Act in relation to the native title application without the need for a separate or new authorisation meeting to be called. McGlade v Native Title Registrar (2017) 251 FCR 172; [2017] FCAFC 10 at [483] is authority that this includes making an application under s 66B(1).
26 Notwithstanding the provisions of s251B, s66B of the Native Title Act provides for replacement of the native title applicant in defined circumstances. Importantly, the section was amended by the Native Title Legislation Amendment Act 2021 (Cth) (Act No. 6 of 2021) in September 2021. Relevantly, it now provides:
(1) One or more members of the native title claim group (the claim group) in relation to a claimant 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) …
(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.
(2) The Court may make the order if it is satisfied that the grounds are established.
27 The rationale for the revision of s 66B was explained in the Revised Explanatory Memorandum to the Native Title Legislation Amendment Bill 2020:
32. Finally, the amendments in Part 3 of Schedule 1 will simplify the process for a claim group to replace individual members of the applicant in circumstances where a member either passes away, or is no longer able to perform their duties, including through preagreed succession-planning arrangements. Currently an authorisation process under section 251B of the Native Title Act, and a further application to the Federal Court under section 66B, is the only way to change the composition of the applicant. This process can be costly and time consuming for native title claim groups, and may not be necessary in circumstances where the claim group allows for changes to be made without reauthorisation.
33. These amendments will allow members of the applicant to be replaced in circumstances where a member has died or is unable to perform the duties of the applicant due to mental or physical incapacity through an application to the Federal Court. These changes will also allow the claim groups to put in place pre-agreed arrangements to replace members of the applicant. For many communities the composition of the applicant is important because individual members will represent family groups or particular areas within the claim group. This amendment will promote individual rights to culture by allowing the claim group to specify specific persons to represent their family or community in advance of a member of the applicant passing away.
(Footnotes omitted)
28 The Revised Explanatory Memorandum later provided:
106. The Native Title Act currently requires a claim group to replace individual members of the applicant in all circumstances by authorising a new applicant under section 251B, and having the new applicant make an application for the Federal Court to replace them under section 66B. This is the case even where a member of the applicant is deceased or unable to act as the applicant because of physical or mental incapacity.
107. This Part amends the Native Title Act to allow one or more members of the claim group to apply to the Court without needing to go through an authorisation process under section 251B in circumstances where an individual member of the applicant is deceased or is unable to act as a member of the applicant. It will also allow claim groups to put in place succession-planning arrangements for individual members of the applicant as part of the authorisation process.
29 For the purposes of this interlocutory application no party disputed, in either written submissions or in oral argument at the interlocutory hearing, that for the purposes of s 66B there is a valid claimant application before the Court, or that the replacement applicant seeking the interlocutory orders are members of the Danggan Balun native title claim group. Further, and specifically to the present case, I note that in Williams on behalf of Danggan Balun (Five Rivers) People v State of Queensland [2020] FCA 938 the Court ordered the replacement of the then-native title applicant with the current Danggan Balun applicant. It follows that the Danggan Balun applicant as presently constituted was validly authorised by the claim group in accordance with s 251B of the Native Title Act (at [21]-[27]).
30 For the interlocutory applicant to succeed in the present matter, it is necessary that it demonstrate for the purposes of s 66B that:
(1) Notwithstanding that the interlocutory applicant is not the current Danggan Balun applicant, it or its constituent members have standing to bring the present interlocutory application;
(2) Breach, by a member of the Danggan Balun applicant, of the terms and conditions of appointment as agreed by the authorisation meeting of the claim group, means that, for the purposes of s 66B of the Native Title Act, that applicant member is no longer authorised by the claim group to make the application and deal with matters arising in relation to it; and
(3) Mr Dillon's conduct breached the terms and conditions of appointment and as such he is no longer authorised within the meaning of s 66B of the Native Title Act.
31 In my view the case of the interlocutory applicant satisfies all of these criteria.
32 First, s 61(1) provides that a claimant application may only be brought by persons who are authorised by all persons forming part of the native title claim group, however this authority is, for the purposes of pursuing an application, vested in each of the authorised individuals personally, rather than as a collective group: Butchulla People v Queensland [2006] FCA 1063; 154 FCR 233 at [43]-[45]; Doolan v Native Title Registrar [2007] FCA 192; 158 FCR 56 at [57]-[60]. Further, the terms of s 66B(1) permit one or more members of the native title claim group to apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on grounds specified in the section.
33 It follows that the members of the interlocutory applicant, being members of the Danggan Balun claim group, can properly bring the interlocutory application currently before the Court. This is consistent with Resolution 5 of the authorisation meeting 15 February 2020, wherein the claim group authorised any "remaining Applicants" to continue to act and apply to remove the name of a member who was incapable, unable, or unwilling to act as a member of the Danggan Balun applicant.
34 Second, the authorisation of members of the Danggan Balun applicant by the claim group was subject to the terms of their appointment, as agreed and approved by the claim group. Specifically, the claim group agreed that a member of the Danggan Balun applicant who acted inconsistently with any resolution passed by the Danggan Balun applicant or the claim group at a properly called and constituted authorisation meeting was to be regarded as unwilling or unable to continue as a member of the Danggan Balun applicant: Resolution 6. The claim group agreed that, in such circumstances, the remaining members of the Danggan Balun applicant were authorised to apply to remove that person from the list of persons comprising the Danggan Balun applicant: Resolution 5.
35 A plain interpretation of these resolutions is that a member of the Danggan Balun applicant who acts inconsistently with any resolution passed by the Danggan Balun applicant, or passed by the claim group at a properly called and constituted authorisation meeting, is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.
36 Third, on 15 February 2020 the claim group resolved that the members of the Danggan Balun applicant owe fiduciary obligations and duties to the Danggan Balun claim group, being:
they must not place themselves in a position where their private or personal interests come into conflict with the interests of the members of the claim group;
they must not pursue and secure personal benefits;
they must not make a profit from their position of trust unless expressly permitted to do so with the informed consent of the Danggan Balun claim group; and
they must act in the best interests of the Danggan Balun claim group and not for their individual, family or descent group's interests.
37 Mr Dillon is a director of TNA Energy. He described it as "his" company. The interlocutory applicant asserted that Mr Dillon breached the terms and conditions of appointment, and therefore must be taken to be unwilling or unable to continue as a member of the Danggan Balun claim group, on the basis of the following conduct:
pursuing personal benefits by allocating work to TNA Energy while performing the role of Cultural Heritage Co-ordinator for the Danggan Balun applicant;
securing personal benefits amounting to $176,925 in disbursements paid to TNA Energy, by Everick Heritage Pty Ltd between January 2020 and June 2021;
making a profit from his position of trust without permission from the Danggan Balun claim group; and
acting inconsistently with resolution 11 passed by the Danggan Balun claim group at the 15 February 2020 authorisation meeting by breaching the approved terms and conditions.
38 This conduct allegedly occurred while Mr Dillon was not only a member of the Danggan Balun applicant, but a Cultural Heritage Coordinator with the Danggan Balun claim group.
39 At the interlocutory hearing, Mr Dillon did not dispute that the conduct relied upon by the interlocutory applicant had occurred, nor did he dispute that he had benefitted from contracts TNA Energy had entered into in relation to work conducted for the Danggan Balun claim group. Rather, Mr Dillon asserted that he was being persecuted by a number of parties owing to his success, and that members of the claim group had been aware, and agreed to, the conduct now relied upon by the interlocutory applicant. In those circumstances, he asserted, it would be entirely improper to remove him from the claim group. As Mr Dillon stated:
It has become an attack and that is why I have been vying for a 66B. And that is what I feel. It just a giant witch hunt and this is what I have tried to prove to you. This is what's going on. They don't want me there because they have seen that I have, you know, gone - I have made the opportunity because I do have a tradesman background. I know how to make money. I even made the group money. The group now has money sitting in the Tim Wishart bank account, which I was against. And I have been trying to get them to do governance. I have even sent the documents to QSNTS, which I can provide - which obviously, I don't have now, but I can get to you if you would like. And I have been trying to show the group this from day 1.
40 In his affidavit dated 28 February 2022, Mr Dillon contended that all members forming part of the claim group receive some benefit, financial or other, stemming from their membership of that group: meeting attendance fees, wages for undertaking cultural heritage assessment work, inter alia. He further stated that the receipt of some form of benefit was commonplace in other claim groups as well.
41 Specifically, in relation to the disbursements paid to TNA Energy, Mr Dillon stated that this was clearly disclosed to the claim group on the basis that it had been a specific line item in their budget documents. Further, he asserted that all funds received by TNA Energy were used to pay back the loan required to purchase the excavator used in work for the claim group, and that the contracts entered into by TNA Energy allowed him to employ Indigenous people with flow-on economic benefits to the community.
42 The question before the Court in this interlocutory application is not whether or not Mr Dillon acted dishonestly. As Mr Wright rightly submitted at the interlocutory hearing:
…we don't seek to make out and we don't need to make out that Mr Dillon acted dishonestly. We simply submit that he acted in breach of his fiduciary duties by putting himself in those positions of conflict and in making personal gain, something that he ought not to have done. And therefore, he ought to be removed.
43 A person who is a member of a native title applicant owes fiduciary obligations to the claim group. As Greenwood J explained in Gebadi v Woosup (No 2) [2017] FCA 1467; 253 FCR 310:
100. In determining whether Mr Woosup and Ms Tamwoy owed fiduciary obligations to the members of the Ankamuthi native title claim group, I apply all the considerations quoted at [98] of these reasons and, in particular, the observations at the quoted paragraphs at [244], [264][269], although all of the quoted observations are relevant to the question in issue. I have also had regard to these authorities: Re Wadi Wadi Peoples (1995) 124 FLR 110 at 124 per French J; Weribone v Queensland (No 2) [2013] FCA 485; (2013) 217 FCR 189 at [44][46] per Rares J; Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [58], [60][62] per Rares J. See also, as to matters of fundamental principle, the observations of Brennan CJ in Breen v Williams (1996) 186 CLR 71 at pp 82 and 83. In Wik Peoples v Queensland (1996) 187 CLR 1 at 95, Brennan CJ considered submissions of the Wik People which asserted the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased area. Although that was the context of the discussion by Brennan CJ (which is not the present context), nevertheless the statement of general principle remains important. Brennan J said this at pp 95 and 96:
[In order to establish] ... the existence of a fiduciary duty ... [i]t is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed. The doing of the action or the performance of the function must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary (or, in the case of a partnership or joint venture, in the common interest of the beneficiary and fiduciary) to the exclusion of the interest of any other person or the separate interest of the beneficiary.
101. There can simply be no doubt that Mr Woosup and Ms Tamwoy, as persons constituting the applicant at any time, undertook or agreed to act for and on behalf of and in the interests of the native title claim group in the exercise of any and all powers, responsibilities and discretions affecting the interests of the claim group in a legal or practical sense. Mr Woosup and Ms Tamwoy, by reason of that role, enjoyed a special opportunity to exercise any such powers or discretions to the detriment of the claim group, and the claim group was, plainly enough, vulnerable to any abuse of position by Mr Woosup and Ms Tamwoy. Mr Woosup and Ms Tamwoy thus stood in a fiduciary relationship, often described as a relationship of "trust or confidence" with the members of the Ankamuthi native title claim group. The members of the Ankamuthi claim group were entitled to expect that Mr Woosup and Ms Tamwoy would act in the best interests of the claim group in exercising any of the functions, powers, responsibilities or discretions conferred upon an applicant.
102. The obligations or duties Mr Woosup and Ms Tamwoy owed to the members of the Ankamuthi native title claim group were these:
(a) an obligation to not place themselves in a position where their private or personal interests came into conflict with the interests of the members of the Ankamuthi native title claim group: a conflict of interest and duty;
(b) an obligation to not pursue and secure a personal benefit: a conflict of interest and duty;
(c) an obligation to not make a profit from their position of trust unless expressly permitted to do so with the informed consent of the Ankamuthi native title claim group: a conflict of interest and duty;
(d) an obligation to not place themselves in a position where their personal interests or duties conflicted with duties owed to the Ankamuthi native title claim group: a conflict of interest and duty, and a conflict of duty and duty.
44 I note that the obligations in Resolution 1 of the authorisation meeting are reflective of these general law duties.
45 At the time that the relevant Celestino Pty Ltd land development was agreed, it does not appear that Mr Dillon disclosed to, or sought approval from, either the Danggan Balun applicant or the Danggan Balun claim group, for TNA Energy to be engaged to provide excavator services. It is my understanding from the evidence of Ms Bonner (referable to information provided by Mr Robins of Everick) that TNA Energy provided such services from some time around January 2020. This evidence is not disputed. It is common ground that Mr Dillon personally benefitted from the engagement of TNA Energy, although he also gave evidence that other Indigenous persons similarly benefitted.
46 The evidence before the Court, including of Ms Bonner and Mr Davies, was that the other members of the Danggan Balun applicant did not became aware of Mr Dillon's personal interest in the provision of excavator services by TNA Energy to Everick until the Danggan Balun applicant meeting of 9 June 2021.
47 Mr Dillon points to page 4 of the QSNTS Newsletter as evidence, however in my view this evidence is equivocal. It does not amount to disclosure by Mr Dillon to either the applicant or the claim group of any interest he had in commercial activities involving the claim group and third parties.
48 The evidence of Mr Davies was that Mr Dillon arranged for the allocation of excavation work. It appears that TNA Energy was included in the budget for approval of the Danggan Balun applicant by the time of the meeting of 9 June 2021. Ms Bonner also gave evidence that Mr Dillon at the meeting of 9 June 2021 confirmed to her and the other members of the Danggan Balun applicant that his company TNA Energy would be used for the excavation work.
49 Notwithstanding this, the evidence of Ms Bonner concerning information provided by Mr Dillon at the meeting of 9 June 2021 does not support a finding that Mr Dillon sought, and obtained, the informed consent of the Danggan Balun applicant, or the claim group, to the use of his company TNA Energy in the land development plan of Celestino. Such evidence of statements by Mr Dillon at that meeting rather paints a picture of Mr Dillon referring to the use of TNA Energy in relation to the excavator works. Presenting the contractual engagement of TNA Energy to the 9 June 2021 meeting as a fait accompli, in respect of a decision already made by him in the allocation of excavator works involving contracts of the claim group, is not consistent with the obligations of a fiduciary in the position of Mr Dillon.
50 As I have already noted Mr Dillon gave evidence that others, including other Indigenous people, had benefitted from the engagement of TNA Energy. This, however, is not the point. A fiduciary must not put themselves into a position of conflict, or where they make a personal profit from the position of trust, without the permission of the beneficiary - in this case the Danggan Balun claim group.
51 On the evidence, Mr Dillon has acted inconsistently with Resolution 1 of the authorisation meeting of 15 February 2020 and is taken to be unwilling or unable to continue to act as a member of the Danggan Balun applicant. It follows that, pursuant to the terms and conditions of appointment of the members of the Danggan Balun applicant as agreed by the claim group, he is no longer authorised to act as a member of the Danggan Balun applicant.
52 The interlocutory applicant also alternatively submitted that, by breaching the terms and conditions of appointment of the Danggan Balun applicant, Mr Dillon had exceeded the authority given to him by the claim group to deal with matters arising in relation to the Danggan Balun claim. In my view, in circumstances where Mr Dillon is plainly no longer authorised, it is unnecessary for me to decide this point.
53 It follows that the interlocutory applicant is entitled to the relief sought.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.