Rares J
In this matter, the Court dealt with two competing applications (Binge applicant and Mailman applicant) for an order under s 66B of the Native Title Act 1993 (Cth)(NTA) to replace the existing applicant in the matter.
The Binge applicants claimed that they had been authorised in meetings in September and October 2011 to bring an amended application for determination of native title on the basis of an expansion of the apical ancestors of the native title claim group by the addition of Dolly Clark. That addition was based on advice from a consultant anthropologist, Dr John Morton.
The Mailman applicants claimed that there had been no valid change to the composition of the claim group and dispute that Dolly Clark would properly be included in any description of the claim group.
The Mailman applicant opposed the Binge application on the basis that:
the 3 September 2011 meeting was ineffective because no proper notice was given of the business to be conducted
the 8 October 2011 meeting was procedurally flawed because of alleged defects in its advertising, the remoteness of Toowoomba from Roma, where many of the Mandandanji people were, and the differing numbers in attendance at the times that critical votes were taken
even if all procedural aspects of the Binge application were satisfied, the Court should not recognise the Binge applicant as a result of an asserted change in Dr Morton’s position in relation to the appropriateness of including Dolly Clark as an apical ancestor of the Mandandanji claim
If the Binge applicant failed, the Court was required to consider whether the Mailman applicant should replace the current applicant.
Background
The 3 September 2011 meeting was advertised by public notice in four newspapers. The notice identified the four current apical ancestors of the Mandandanji People by name and invited all the persons who were the descendants of those apical ancestors to attend the meeting. The notice stated:
"The authorisation meeting will authorise matters including:
Expert evidence for the connection from pre-sovereignty to contemporary society;
A claim group description that is consistent with the expert evidence, which may include amending the existing apical ancestors."
The advertisement did not mention Dolly Clark. The meeting went ahead and resolutions passed to include Dolly Clark as an apical ancestor, amend the claim group description to add Dolly Clark and hold a further authorisation meeting to authorise a replacement applicant.
On 8 October 2011, a further meeting resolved that the new applicant, the Binge applicant,would be authorised to act on behalf of the claim group in relation to the native title application and apply under s 66B of the NTA to be the replacement applicant for the claim.
Disaffected members of the current applicant called a meeting on 12 November 2011and it was resolved to appoint the Mailman applicant to make an application under s 66B of the Act.
Accordingly, the Court was tasked with having to deal with two competing applications seeking to be named the new applicant to the native title claim under s 66B of the Act.
Reasoning
After considering the positions of the Binge and Mailman applicants, the Court found that the notice of 3 September 2011 meeting did not give fair notice of the business to be considered at the meeting. It followed that the notice of 8 October 2011 meeting was not valid because it called together people who were not members of the claim group and entitled them to vote on the business that was conducted at that meeting. This meeting was also conducted on the mistaken premise that, by then, the claim group’s description had changed in accordance with the resolution adding Dolly Clark as an apical ancestor.
The Court did not consider the location of a meeting to be a factor in relation to validity of the meeting.
For these reasons, the Court ordered that the Binge applicants must fail.
The Court then considered whether the Mailman applicants should replace the Binge applicants. The Court found that it would not be in the interests of justice to grant the Mailman application as it was based on the November 2011 meeting and it was likely that a significant part of the constituency would have been misled, unintentionally, by their awareness of the resolutions in one or both of the earlier two meetings that the November 2011 meeting itself had not been validly constituted.
Accordingly, the Court was not satisfied that the November meeting had been validly called because the members of the existing, original claim group were not properly informed about the invalid status of the earlier meetings.
As a result, there was no longer an authorised applicant to prosecute the existing claim and a new meeting to authorise a replacement applicant was required. Due to significant division between the members of the existing applicant group, which raised questions as to the proper and authorised control of the Mandandanji Peoples’ funds and assets, the Court granted an injunction to protect the rights, assets and interests of the native title claim group until a final determination was made.
Orders
The meetings held on 3 September 2011, 8 October 2011 and 12 November 2011 were not properly constituted and the meeting resolutions were invalid and of no effect.
Until a determination of native title or further order, any monetary benefit payable to the applicant, the claim group or any other entity or person on behalf of anyone of them, must be paid to the Registrar of the Court to be held for the benefit of the native title claim group.
Any relevant person must prepare and submit full details of all money payments and other benefits received, all meetings attended and activities undertaken and other related matters to the Registrar and the applicant for the claim group.
Each application under s 66B of the NTA be dismissed.
The Binge and Mailman applicants and other members of the native title claim group may participate in a mediation before the Registrar for the purposes of agreeing a process for convening a meeting of the claim group to propose an applicant to replace the current applicant.