Williams v Grant [2004] FCAFC 178 | Case summary

REASONS FOR JUDGMENT LANDER J: 11 This is an appeal from an order of a judge of this Court dismissing the appellant's application, dated 8 August 2002, for an order pursuant to s 84C of the Native Title Act 1993 (Cth) (the Act) striking out the first respondent's application under the Act. The appellant and the first respondent are both Wiradjuri Aboriginal people. 12 On 27 February 2002 the first respondent (who claimed to be authorised by the Wiradjuri Council of Elders) filed a claimant application in this Court for a native title determination in relation to land in the Central West of New South Wales near Lake Cowal. The claim was filed in response to a notice under s 29 of the Act in respect of land proposed to be the subject of a mining lease to be granted by the New South Wales Minister for Natural Resources (the second respondent) to Barrick Australia Ltd. The first respondent has amended the claim on two occasions, 2 August 2002 and 5 September 2002. In the first respondent's amendment on 5 September 2002, the number of applicants was increased to five. Apart from the first respondent, the applicants are Mrs Valarie Daley, Mrs Pauline Martin, Mr Percy Knight and Mrs Bonnie May. 13 The appellant has also brought a native title claim in respect of the same land [A6000 of 2002]. He has brought that application on behalf of the 'Mooka People' who are a sub-group of the Wiradjuri people. 14 The Wiradjuri people's traditional country extends over about a third of what is now the State of New South Wales, ranging from Dubbo and Mudgee in the North to the Murray River in the South, and from the Great Dividing Range in the East extending across the Western Plains. The sub-group of these people who traditionally occupied the lands around Lake Cowal are the Condobolin Aborigines. 15 The application to strike out was supported by a number of affidavits, including three of the appellant sworn on 28 May 2002, 9 August 2002 and 10 June 2003, two of Kathleen Towney sworn on 9 June 2003 and 11 June 2003, one of Betty Atkinson sworn 2 May 2003, Beryl Smith sworn 2 October 2002, Ernest Wighton sworn 27 May 2002, Mary Ellen Sloan sworn 26 May 2002, Beryl Hutchings sworn 26 May 2002 and Valdo Weldon sworn on a date unknown in March 2002. 16 It is not explained either in the affidavits or in the reasons for judgment of the primary judge why some of these affidavits were sworn well before the application was made. The appellant seems to have relied upon affidavits on this application which had been filed in another application for native title. Whilst nothing turns on that, some of the affidavits do not address the evidence in other affidavits. 17 The only evidence in response to the evidence contained in the appellant's affidavits was in affidavits of the first respondent. A draft of the main affidavit is included in the appeal papers. 18 I understand that the draft is in the form of the affidavit which was sworn and filed. 19 Three other affidavits sworn by the first respondent are contained in the Appeal Book. All appear to have been drafted in support of the first respondent's native title claim. They were all sworn before the appellant's application to dismiss was made. 20 Although the second respondent appeared before the primary judge and on this appeal, the second respondent made no submissions on the application. 21 Section 84C of the Act provides: ' Strike-out application (1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application. Note: The main application may still be amended even after a strike-out application is filed. Court must consider strike-out application before other proceedings (2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1). Registrar of Court to advise Native Title Registrar of application etc. (3) The Registrar of the Court must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application. Other strike-out applications unaffected (4) This section does not prevent the making of any other application to strike out the main application.' 22 Section 61 identifies the persons who are entitled to make applications for native title. In particular, it identifies the person or persons 'authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group'. 23 Section 251B of the 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 or 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.' 24 The appellant claimed that the first respondent was not authorised, within the meaning of s 251B of the Act, to bring a native title claim. In those circumstances, he argued that her claim did not comply with s 61 of the Act. Therefore, he argued, the claim should be struck out pursuant to s 84C of the Act. 25 The matter to be determined by the primary judge was whether, at the time of the hearing of the notice of motion, the first respondent was authorised, within the meaning of the Act, to bring a native title claim. 26 The appellant and the first respondent read the affidavits to which I have referred. Neither sought to cross-examine any of the deponents to the affidavits. 27 The appellant was not represented by a lawyer but by a layperson who also represented him on this appeal. The appellant's evidence before the primary judge was of a poor quality. His evidence contained hearsay evidence which could have been, but was not, put in an acceptable and admissible form. At the time the affidavits were read, no objection was taken to the admissibility of that evidence and the primary judge admitted the affidavits (TX 6). Objection was taken when submissions were made - at a time when the appellant was not in a position to put the evidence into an admissible form. 28 The appellant's evidence raised a number of factual disputes which, in my opinion, could not be easily resolved upon the papers. 29 The first respondent's evidence was also unsatisfactory. Although she was represented by lawyers, including counsel, both at the hearing and on appeal, her evidence did not address much of the factual material raised by the appellant. Instead, she claimed to be authorised to bring the native title claim under a different head than that asserted by her in the claim itself and in other evidence. 30 I should say in passing that the material contained in the Appeal Book is also of a poor quality. Copies of the originals of documents are not included. A copy of the original moving application is not included. Drafts are included. It is not possible to identify with any precision the date upon which documents were filed or the proceedings in which they were filed. 31 The provenance of various documents is not readily ascertainable. It is clear that some different documents must have been before the primary judge. For example, the primary judge refers to an important part of the first respondent's amended application at par 9 of his reasons. The document contained in the Appeal Book (AB81) is in a different form. I think that is because the native title application exhibited to the appellant's affidavit, affirmed on 9 August 2002, which is contained in the Appeal Book, does not contain whatever amendments were made on 5 September 2002. 32 In the end result, the primary judge found that the appellant's evidence did not address the authorisation claimed by the first respondent and the appellant's application had to fail. 33 Mr Oshlack, who is not a legal practitioner, sought leave to represent the appellant on this appeal and, there being no objection, leave was granted. 34 On the appeal the appellant sought to tender two affidavits, being the affidavits of Ms Rosie Newman sworn on 31 January 2004 and Ms Joyce Newman sworn on 1 February 2004, pursuant to O 52 r 36 of the Federal Court Rules. 35 Order 52 r 36(4) requires a party applying to the Court to receive additional evidence, on appeal, to state the grounds of the application in an affidavit. The appellant did not comply with that sub-rule. Nor did the appellant provide this Court with any evidence necessary to establish the grounds of the application: O 52 r 36(5). 36 The power of the Court to receive further evidence on appeal is derived from s 27 of the Federal Court of Australia Act 1976 (Cth) and, of course, O 52 r 36. 37 The power to receive further evidence is discretionary. Whilst there are no fixed rules which govern the exercise of this discretion, matters which are usually relevant are whether the applicant exercised due diligence in attempting to procure the evidence before trial but the evidence was not available at trial, and if the evidence had been available at trial the opposite result would have been obtained: CDJ v VAJ (1998) 157 ALR 686; [1998] HCA 67 at [104]. 38 The Court did not rule upon the application during the hearing of the appeal, but reserved its opinion until the determination of the appeal. 39 In my opinion, the appellant should not be entitled to tender the two affidavits on this appeal. 40 At the hearing before the primary judge the appellant tendered an affidavit of Kathleen Towney which exhibited letters from Ms Rose Newman and Ms Hilda Joyce Newman. I understand that they are the deponents to the affidavits which the appellant seeks to tender. 41 In the letter of 8 June 2003, Ms Rose Newman wrote: 'To Whom it may concern I Rose Newman have never supported the Lake Cowel project, and further have never agree [sic] both in written or verbal to Flo Grant either for the project or against. Ms Flo Grant has stated she has my agreement this is totally false. If you have any inquiries regarding this matter my address is - 193 Bathurst Street Condobolin 2877 D/O/B 17th March 1919 Signed (Mrs Rose Newman)' 42 Ms Hilda Joyce Newman wrote: 'To Whom it may concern I Hilda Joyce Newman would like it know [sic] that I have never agreed with anything Ms Flo Grant has been trying to acheive [sic] in terms of Lake Cowel mining project. I have never given my permission to Ms Flo Grant both written or verbal for her to pursue the Lake Cowel mining project. You may contact me at the address if you have any further inquiries. Yours Truly Signed (Hilda Joyce Newman)' 43 The relevant part of Ms Rose Newman's affidavit reads: 'I refer to the affidavits of Flo Grant, Pauline Martin, Dawn Johnson, Mary Ellen Sloane and Beryl Hutchings dated 29 May 2003 and I wish to put beyond any doubt that I have never authorised any of the above people to put in a Native Title claim over the lands at Lake Cowal. I have never at any time given my approval for Percy Knight, Valerie Daley or Bonnie Merrit to be applicants for a Native Title claim over the lands at Lake Cowal. I have not authorised any of these people to be applicants on a Native Title Claim. I do not want the goldmine at Lake Cowal to go ahead.' 44 Ms Joyce Newman relevantly deposed: 'I have seen the affidavits dated 29 May 2003 by Flo Grant, Beryl Hutchings, Pauline Martin, Dawn Johnson and Mary Ellen Sloane and I have never agreed for these people to put in a native title claim for Lake Cowal. There was no permission or authorisation given by me.' 45 The appellant sought to tender the affidavits in an attempt to address a comment made by the primary judge during argument. His Honour, after referring to the two letters set out above, said the authors were talking about different things meaning that the authors were talking about the gold mine not the authorisation. It will be necessary to further examine the evidence which was tendered, but I will assume, for present purposes, that the authors were only addressing the gold mine and not the authorisation in order to determine whether the 'fresh evidence' should be admitted. It is clear that the evidence now sought to be tendered was always available to the appellant. The appellant obtained letters from the deponents. Clearly enough he could also have obtained affidavits in the terms now deposed to for the hearing before the primary judge. 46 No explanation has been offered for the failure of the appellant to adduce the evidence before the primary judge. If the affidavits were to be admitted the first respondent would be entitled to cross-examine the deponents and tender any available evidence in response. Indeed, the first respondent's counsel said that his instructions were that 'the affidavits do not reflect what they [sic] consider to be the truth'. The admission of the affidavits would inevitably mean that the application under s 84C would have to be considered afresh. It would be inappropriate for this Court to embark upon a hearing of the matter afresh given that the only appeal from this Court is by special leave to the High Court. 47 In those circumstances, if the affidavits were admitted, the matter would have to be remitted to a single judge. That would, effectively, mean that the appeal would be allowed without the merits of the appeal being considered. The appellant would have obtained a favourable result by his own failure to adduce available evidence before the primary judge. That would be unfair to the first respondent. In my opinion, the affidavits should not be received. 48 Section 84C only applies to applications which do not comply with ss 61, 61A and 62. However, an application under s 84C, if successful, has the very serious consequence that the native title application is struck out. Such a result is akin to a court proceeding being summarily dismissed, or at least dismissed before any hearing on the merits. No court proceeding is summarily dismissed except in a very clear case: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129. 49 Applications for native title are brought by representatives of the native title claim group. The dismissal of an application because, for example, the applicant has not been authorised means the dismissal of the native title claim group's claim. The repercussions, therefore, are far reaching. I see no reason why an application to strike out a native title claim under s 84C should be treated any differently to any other application to dismiss a claim summarily. The power should be exercised sparingly and with caution, and only when the Court is satisfied that the moving party has made out a clear case that the applicant has not complied with the relevant section and cannot, by amending the application, comply. Section 84C assumes that a party might respond to a strike out application by amending the claim to comply with the requirements of the Act. A claim can be amended without obtaining leave. 50 Because of the unsatisfactory nature of the appellant's evidence, the appellant's application was bound to fail. 51 The appellant should have identified the first respondent's claim of authorisation in the native title claim and then dealt with that claim by direct evidence to establish a want of authority. If, in any reply, the first respondent claimed a source of authority apart from that contained in the native title claim itself, the appellant needed to address that claim. 52 Section 84C may be contrasted with s 66B. That section provides for the replacement by a member or members of a native title claim group of the current applicant on the grounds stated in the section. Relevantly in this case, an order may be made replacing the current applicant if she is no longer authorised by the claim group to make the application and the member or members are authorised by the claim group to make the application. In the case of a successful application under s 66B, the native title application is not dismissed but goes forward with new applicants. 53 Section 66B assumes that the current applicant, who is sought to be replaced, had authority to bring the claim at the time the claim was made: s 66B(1)(a)(i). The section only applies where the current applicant is 'no longer authorised' or 'has exceeded the authority given to him or her by the claim group'. 54 Thus, in this case, where the appellant contended that the first respondent was never authorised to bring the native title application, the appellant has adopted the correct procedure, which is to proceed under s 84C. 55 Section 84C(2) requires the Court to consider the application to strike out 'before any further proceedings take place in relation to the main application'. 56 That subsection recognises that if an application under s 84C is successful the application for native title will be struck out. Because of the possible consequences of the application, it is in all parties' interests that the application be heard before any other steps are taken in relation to the main application. The subsection requires the Court to 'consider the application made under subsection (1)'. The subsection does not require the Court to determine the application before any further steps are taken. The use of the word 'consider' without an obligation on the Court to also 'determine' the application is deliberate. 57 In some cases it will be appropriate to determine the application at the same time as it is considered. Where the application to strike out is obviously without merit then it may be dismissed immediately. Where the application is clearly a case that calls for relief under the section, recognising that relief will be provided sparingly as I have described it, then an order will be made dismissing the main application. In many cases, an applicant faced with an application under s 84C will apply to amend the application to cure an identified deficiency. For example, where an application is based upon an applicant's failure to comply with s 62 in supplying the details under that section, an applicant might respond by amending the application to make it comply. In those cases, the Court will not be called upon to determine the s 84C application. 58 In some cases it may be difficult to decide whether the application should succeed. For example, it may be difficult to decide, on the papers, whether the applicant has been authorised by the native title claim group. 59 In that case it may be appropriate to hear and determine the application under s 84C at the same time as the main application. I agree with the dicta of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] where his Honour said: 'Section 84C(2) of the new Act says that, upon an application being made under s 84C(1), the "Court must, before any further proceedings take place in relation to the main application, consider the application under subsection (1)". It may be, as submitted by Mr Wright on behalf of the State, that the requirement to "consider" the application does not include a requirement to determine the application. It may be open to the Court, having considered the merits of an application, to decide to defer a ruling on it until the trial of the principal application. Whether or not that is so, it is clearly the policy of the Act that the Court should give immediate attention to a strike out motion. The reason, no doubt, is that it is undesirable to allow parties to be put to trouble and expense in relation to an application that fails to comply with the fundamental requirements stated in ss 61, 61A and 62.' 60 Whether an applicant is authorised to make a native title application will be answered by a consideration of s 251B. Section 251B provides that an applicant can be authorised in either of two ways. First, the authority may have been given under traditional laws and customs: s 251B(a). Alternatively, authorisation may be given on some other basis 'in accordance with a process of decision making agreed to and adopted, by the native title group': s 251B(b). In many cases, it may be difficult to determine whether a person has been authorised by a native title claim group under traditional laws and customs. First, it may be difficult to determine the native title claim group and who is entitled to be part of that group. Secondly, it may be difficult to determine traditional laws and customs. Thirdly, whether or not the traditional laws and customs have been complied with may be a difficult question. Where those complexities occur, s 84C does not preclude a determination of those matters at a different point of time to a consideration of those same matters under s 84C(2). It may be appropriate, in some cases, after considering the s 84C application, before any further proceedings take place in relation to the main application, not to determine that application until after hearing the native title application itself. However, I do agree with Wilcox J that the policy of the Act is to give priority to the strike out application. 61 In this matter, the primary judge acted upon the first respondent's affidavit evidence which he said was not challenged by cross-examination or by evidence in rebuttal. He found that the first respondent was authorised by traditional laws and customs (s 251B(a)) to make the native title application. He said: ' It seems to me the quoted evidence establishes the following propositions: (i) Under the traditional laws and customs of the Wiradjuri People (the persons who comprise the native title claim group) there is a process of decision-making that must be complied with in relation to land issues. (ii) That process is one of discussion by and between Elders and heads of families. (iii) Ms Grant, who is an Elder, initiated, and participated in, such discussions. (iv) The outcome of the discussions was that Ms Grant was authorised to lodge a native title claim on behalf of the Wiradjuri People in general, and the Condobolin Wiradjuri in particular. This was done in the context of a s 29 notice over the land that was proposed to be leased to Barrick; so the land to be claimed was that land. (v) At the meeting of 22 and 23 June 2002, it was agreed that additional claimants should be added, three of them (Pauline Martin, Val Daley and Bonnie May Merritt) being Condobolin Elders. Propositions (i), (ii), (iii) and (iv), read together, lead to the conclusion that Ms Grant was authorised, in accordance with s 251B(a) of the Act, to make the subject native title claim. Paragraph (1) of the third column of s 61 was satisfied.' 62 On this appeal the appellant challenges the primary judge's finding that there was no challenge to the first respondent's evidence in rebuttal. It was argued that there was a body of evidence within the affidavit evidence contrary to the first respondent's affidavit evidence. 63 The first respondent's application for native title was exhibited to one of the appellant's affidavits. In that application, the first respondent addressed the capacity in which she claimed to be entitled to bring the application (i.e. s 61(1) of the Act): 'The applicant is authorized by the Council of Elders to lodge claim on its behalf as representing Wiradjuri people and is entitled to make this application as: An Elder of The Wiradjuri Council. Of Elders Endorsed by the Elders at meetings at Wagga Wagga NSW at the Wiradjuri Regional Land Council 153 Docker Street on the 15/12/01 Elders at the meeting were Stain Grant from the ACT Neville Williams from Mawson Sec Grant (Wonjamar) from Albury Ramsay Freeman from Tumut Stephen Ryan Dubbo Flo Grant Wagga Agnes Coe. Cowra James Morgan Wagga Tony Peachey Joyce Paechey & Elva Sec of Dubbo Russell Dunn of Adelong and on the 02/02/02 in Cowra NSW at the Community Centre Young Road Cowra. At this meeting were Yvonne Gilchrist Wagga Mattilda hill Wellington Rose Chown Wellington Violt Lousick Wellington Terry Bell Wellington Stephen Ryan Dubbo Bill Allen Bathurst Wynn Allen Raglan Russell Dunn Adelong Ramsay Freeman Tumut Sec Grant. (Wongamer) Albury Val & Ray Keed Peak Hill Elva Sec Dubbo Levenea Howey Dubbo Joyce Peachey Tony Peachey of Dubbo Cathy Peachey Orange Flo Grant Wagga Val Weldan Wagga Jenny Munro Alexandra Val White Trengie. Minutes of meetings and advertising of meetings can be supplied. The Wiradjuri Council of Elders was formed by a very large gathing [sic] of Wiradjuri people in Wagga Wagga NSW in about 1993. Where many of the existing Elders were endorsed by their specific regional communities. Since then the Elders have taken on and are encouraging Wiradjuri people to become involved as they need to learn from the Elders of today so that they can pass on the information to the next generation. Identification as Wiradjuri occurs though their genealogy and the Council regularly deals with applications from Aboriginal people seeking acceptance of their status as Wiradjuri. "Decision Making process remain traditional but in a modern context. Major decisions are made by voting method by Elders present at a meeting of the Council of Elders After Consutlation with any Elders who may be unable to attend a particular meeting (by reason of infirmity, distance or other Circumstances). And after the views of those unable to attend are made known to Members of the Council of Elders present prior to any decision being taken." And by voting by majority and the process is as developed and understood by Wiradjuri people in accordance with customs. Consultation is part of this process. The Wiradjuri Council of Elders is a decision making body for Wiradjuri people. Its process stems from our traditions and acknowledges all Wiradjuri people. Its process stems from our traditions and acknowledges all Wiradjuri people who can identify through their genealogy. Authority of the group may be delegated and exercised only in accordance with authority given.' 64 It is not entirely clear whether the first respondent's application is relying on s 251B(a) or (b), although I think it is more likely that the authority is said to be derived from traditional laws and customs (s 251B(a)). 65 Whichever paragraph is relied upon, the first respondent claims that the authority was given at a meeting on 15 December 2001, although there is a later reference to 'meetings'. What is clear is that there had to be a vote and the vote of the majority would prevail. There must have been a point of time when the majority of the Members of the Council of Elders decided to authorise the first respondent to make the application. That may have been on 15 December 2001 or some other time. 66 In her affidavit the first respondent deposed to a meeting of the Wiradjuri People in West Wyalong on 22 and 23 June 2002 'that was a meeting about the native title application over the mining lease at Lake Cowal'. She said that Agnes Coe was chairperson. She said: '11. The meeting chose Valery Daley, Pauline Martin, Percy Knight, Bonnie Meritt and myself as applicants and authorised us to amend the claim and take control of running on the application. 12. After the meeting I met with a number of Condobolin Wiradjuri People in Condobolin and elsewhere working on informing people and gaining a consensus about the claim. The claim was widely discussed and supported in the Wiradjuri community. 13. Under Wiradjuri custom and tradition there is a decision making process that must be complied with when land issues are involved. The Elders and heads of families discuss the land business and decide these matters. Amongst the Condobolin Wiradjuri People our Elders include Gwen Knight (now deceased), Charlie Coe, Joyce Newman, Rose Newman, Isabel Coe and Guy Wighton. 14. Before I filed the original Wiradjuri People application I discussed it with all these Elders and other Wiradjuri People and they agreed that the claim be lodged and the issues surrounding the mine at Lake Cowal be looked into for the Wiradjuri People and the Condobolin Wiradjuri People in particular. 15. Under Wiradjuri custom and tradition the decision making process that must be complied with when land issues are involved was followed when I lodged the Wiradjuri People native title application with the assistance of the Wiradjuri Council of Elders. The Council of Elders never sought to control the claim, they supported the claim being authorised and assisted in organising the meeting 22 and 23 June to see that the appropriate Condobolin Wiradjuri People took control of the claim for the Condobolin Wiradjuri People. This centering of control on the correct local group is Wiradjuri business and we have processes to settle these matters amongst ourselves at the Wiradjuri People and the Condobolin Wiradjuri People levels. 16. The meeting of 22 - 23 June 2002, settled the issues of the Condobolin Wiradjuri People taking control of this claim. 17. I was taking minutes at the meeting and the decisions to authorise the applicants from Condobolin and to amend the claim to do so was a unanimous decision. I saw Mr Neville Williams at the meeting and he did not register any opposition or objection to the motion. 18. At the meeting the negotiators for Lake Cowal negotiations with Barricks Gold were appointed unopposed. Mr Williams did not speak against the choice of negotiators.' 67 She makes no mention of the meeting of 15 December 2001 in her affidavit. Her affidavit addressed the authority given to her on 22-23 June 2002. But that does not address her authority to file the claim on 27 February 2002. In paragraph 14 she says that she discussed it with 'all these Elders and other Wiradjuri People'. 'All these Elders' are clearly the persons referred to in paragraph 13. 68 Paragraph 14 shows that two matters, the claim and the issues surrounding the mine, were discussed and agreed by the 'Elders and other Wiradjuri People'. It follows that all those people in paragraph 13 must have agreed to both matters. 69 Whatever authority she had to lodge the claim must have been given in those discussions. That procedure is quite different to the procedure identified in the application itself. 70 As I have already said, three further affidavits of the first respondent are included in the appeal books. I think they were filed in compliance with s 62 of the Act. 71 In the third of those affidavits, the first respondent has deposed: '4. The WIRADJURI People have a traditional decision-making process that must be complied with when land issues are involved. The Elders and heads of families discuss the issue amongst themselves and their relatives and then the Elders and heads of families reach a consensus among themselves after considering the views of others and taking a majority vote. 5. Under WIRADJURI customary law and tradition based on WIRADJURI language groups, the Elders and heads of families decide land business for all WIRADJURI People. A decision of the Elders and heads of families is final and WIRADJURI People who are not Elders and heads of families cannot disagree publicly with the Elders about such a decision. 6. During 2002, in response to a section 29 notice from the Minister of Mines in New South Wales the WIRADJURI People discussed amongst ourselves the need to lodge a native title application over our country to protect our procedural rights in relation to the mining lease application. 7. A series of customary and traditional meetings during 2001 and 2002, and at important meetings in December 2001 and February 2002 affirmed the Elders and heads of family's decision to authorise the Applicant to pursue this application and seek as an outcome a determination of native title for the WIRADJURI People. 8. The WIRADJURI Peoples have complied with our own customary and traditional decision-making process that must be complied with and have authorised this application.' 72 On the first respondent's own case the meetings of December 2001, February 2002 and the two meetings in June 2002 are important. It was at those meetings that the first respondent, on her case, was authorised to make the application for native title. 73 The primary judge discussed each of those meetings in his reasons, but made no findings. I think it is clear from his reasons that he accepted counsel for the first respondent's submission which he recorded in his reasons at [27]: 'Mr Poynton did not accept all these criticisms but he did not debate them at length. Rather, he sought to outflank Mr Oshlack by saying none of the meetings was the source of Ms Grant's authority to bring the claim. Mr Poynton said he did not rely upon para (b) of s 251B, but upon para (a). He drew attention to a passage in an affidavit of Ms Grant sworn on 29 May 2003: 13. Under Wiradjuri custom and tradition there is a decision making process that must be complied with when land issues are involved. The Elders and heads of families discuss the land business and decide these matters. Amongst the Condobolin Wiradjuri People our Elders include Gwen Knight (now deceased), Charlie Coe, Joyce Newman, Rose Newman, Isabel Coe and Guy Wighton. 14. Before I filed the original Wiradjuri People application I discussed it with all these Elders and other Wiradjuri People and they agreed that the claim be lodged and the issues surrounding the mine at Lake Cowal be looked into for the Wiradjuri People and the Condobolin Wiradjuri People in particular. 15. Under Wiradjuri custom and tradition the decision making process that must be complied with when land issues are involved was followed when I lodged the Wiradjuri People native title application with the assistance of the Wiradjuri Council of Elders. The Council of Elders never sought to control the claim, they supported the claim being authorised and assisted in organising the meeting 22 and 23 June to see that the appropriate Condobolin Wiradjuri People took control of the claim for the Condobolin Wiradjuri People. This centering of control on the correct local group is Wiradjuri business and we have processes to settle these matters amongst ourselves at the Wiradjuri People and the Condobolin Wiradjuri People levels. 16. The meeting of 22 - 23 June 2002, settled the issues of the Condobolin Wiradjuri People taking control of this claim.' 74 Unlike his Honour, I cannot, with respect, agree with Mr Poynton's submission that 'none of the meetings was the source of Ms Grant's authority to bring the claim'. As I have shown, it was the first respondent's case that her authority was agreed and determined at those meetings. It was necessary to determine whether her assertions were correct or the contrary assertions in the appellant's case, which I shall now address, were correct. 75 Exhibited to an affidavit of Kathleen Towney is a statement of Isabel Coe. Isabel Coe is named as one of the Elders in paragraph 13 of the first respondent's affidavit. Isabel Coe's statement reads: "To Whom it may concern I Isabel Coe D/O/B 31/8/31 have never given permission or agreed to the Lake Cowel project either for or against. I have read the affidavits submitted by the applicants and would like it known that I have never spoken to any of them regarding this matter. If you have any enquiries please contact me at the above. 9/6/03 Signed (Isabel Coe).' 76 The statement does not directly address the first respondent's claim of authority, but it does contradict the claim made by the first respondent in paragraph 14 that she had discussed it with all the people referred to in paragraph 13 and they agreed that the claim be lodged. 77 I have set out Rose Newman and Joyce Newman's statements. They also are referred to in paragraph 13 of the first respondent's affidavit as Elders with whom the first respondent has discussed and agreed the lodging of the claim. Both women contradict the first respondent's claims. 78 Ernest William Wighton's affidavit was read. He is referred to in paragraph 13 of the first respondent's affidavit as Guy Wighton. He deposes in his affidavit: '4. I know Lake Cowal and the lands around the Lake Cowal area very well. I also know that Neville Williams has filed an application for native title for Lake Cowal. I am aware that he has obtained an injunction in the Land and Environment Court to restrain the mining company from continuing its exploration drilling at Lake Cowal. 5. I have never been invited to a Wiradjuri Council of Elders meeting. I do not know who the Wiradjuri Council of Elders represents. … 13. I support Neville Williams native title claim. I also support his attempts to get the relics at Lake Cowal protected and keep them in the ground. I believe he can represent the people of Condobolin.' That would also seem to contradict the first respondent's affidavit. 79 In her affidavit, Mary Sloan deposes: '4. I know Lake Cowal and the lands around the Lake Cowal area very well. I also know that Neville Williams has filed an application for native title for Lake Cowal. I know that the Wiradjuri Elders Council have put in a native title application for Lake Cowal as well. Through my knowledge of Wiradjuri people I can say the Florence Grant and the chairperson of the Wiradjuri Council of Elders Ltd, Aggie Coe are not the proper claimants for Lake Cowal. I believe that the Wiradjuri people of Condobolin have a right to talk for Lake Cowal. I believe that the Wiradjuri people of Condobolin have a right to talk for Lake Cowal. I know this from what I have learned from living in Condobolin for the last forty nine years. I've also talked to elders from the Condobolin area such Albert Johnson. He has told me many things about this country. He has told how me [sic] who from here and who should speak up. 5. I know that there was a meeting of the Wiradjuri Council of Elders in Condobolin on 19 May 2002. I was not invited to the meeting but have heard all about it from people talking about it around the community. There was no notice of the meeting. I was not told of the meeting by the Wiradjuri Elders Council. I have heard that Lois Goolagong, Valery Daley (nee Neumann), Pauline Neumann and Bonny Merritt were invited onto the Wiradjuri Council Elders. I have heard these people telling others around town that they are now Elders. I do not know of any discussion in the community about who should represent the Condobolin Wiradjuri community on the Elders Council. I believe this is wrong. There should have a community meeting to discuss this and choose the proper representatives. … 10. I believe the laws of the people here are different from those of Florence Grant and Aggie Coe. Our law requires the whole Condobolin Aboriginal community to get together, not just family from one or two groups. We put notices in the local newspapers and distribute flyers so that everybody knows what is happening. We will go around and see people to may [sic] sure they are notified and can come to a meeting to discuss important matters. This has happened before.' 80 Ms Sloan's affidavit directly contradicts the first respondent's evidence of the traditional laws and customs. 81 Ms Hutchings says in her affidavit: 6. I know that Neville Williams, who I call Chappie, has made a native title claim over Lake Cowal. I have only recently heard that Florence Grant has put in a native title claim for the Lake Cowal on behalf of all the Wiradjuri people. She does not have the right to make any such claim. Florence Grant is not from around these parts. I believe she is may be from Griffith. 7. The Wiradjuri Council of Elders does not represent the Condobolin Wiradjuri people. We are different people to the people at Cowra, where Aggie Coe is from. 8. Wiradjuri country is very big. Condobolin people will not go to meetings on other people's country and do not want other people coming and speaking for us. 9. I have said that my mother was from the Bogan River tribe at Peak Hill. In addition to the Bogan River tribe, there are several different and separate Wiradjuri tribes that cover the whole of Wiradjuri country. There are different tribes at Dubbo, Peak Hill, Wellington, Cowra, Narrandera, Bathurst, Griffith. Condobolin is different from all of these. Each of these has there [sic] own language. I have heard that a native title claim has been made over the Nanima reserve at Wellington. I cannot comment on whether it is right or wrong for people there to claim native title because that is not my country and no one from there, for instance, can speak about my country. Nor can any of the other Wiradjuri people on the Wiradjuri Council of Elders. 10. I am aware that the Wiradjuri Council of Elders has just invited some Condobolin people onto the Council. Two of these people are my first cousins. They are sisters. I know the other two people. I believe the Wiradjuri Council of Elders must of hand picked these people because there was no meeting here to discuss who would go onto any Council of Elders. I believe they picked those people because they are supports of Aggie Coe. That is not the proper way. The people to be recognised as Elders must be recognised as by our own people first and then put forward. 11. The proper people to speak for this country are my old aunties Rose and Joyce Newman, Sibby Johnson, Gwenny Knight, Guy Whiten and Doc Whiten. I believe it is proper for Neville Williams to have a native title claim for for [sic] this country because he can represent his tribe and is trying to protect our people's voice and interests.' 82 Her evidence, like Ms Sloan's, takes issue with the first respondent's claim of authorisation in accordance with traditional laws and customs. 83 For all of those reasons, I cannot agree with the primary judge's statement that there was no challenge to Ms Grant's affidavit evidence. In my opinion, the appellant's evidence did challenge the first respondent's claim of authorisation. 84 But that does not mean the appellant's appeal must succeed. The appellant brought an application under s 84C and thereby had the onus and responsibility of establishing that the first respondent was not authorised by the native title group to bring her claim. For the reasons already given, the appellant needed to establish that this was a very clear case of want of authority. 85 In my opinion, the appellant's evidence fell short of proving that the first respondent was not authorised. 86 The appellant has not addressed directly the first respondent's claim of authority in the native title claim or the first respondent's claim in the affidavit filed in response. Whilst there is undoubtedly great confusion as to who is authorised to bring the native title claim and on behalf of whom, the appellant has not discharged the onus of establishing that the native title claim does not comply with s 61 and should be struck out. Specifically, the appellant did not establish before the trial judge that the evidence clearly supported a finding of a want of authority on the part of the first respondent to bring the claim. 87 A native title claim will only be struck out, for any of the reasons in s 84C(1), where the moving party establishes that the claimant has clearly failed to comply with one or other of the sections referred to in that subsection. 88 Because the appellant relied upon affidavits in other proceedings which did not directly address the issues before the Court, the appellant was not able to establish, to the level of satisfaction required, that the claim should be struck out for want of authority.

Williams v Grant

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)

Cited By (33)