McKerracher J
In this matter, the Court considered an application to replace the Current Applicant group of the Yindjibarndi [No 1] Application with a Replacement Applicant group and make associated amendments to the heading of the application. The application was opposed by Ms Aileen Sandy and Ms Sylvia Allen, two members of the Current Applicant, on technical and policy or discretionary grounds.
Background
In 2011 various resolutions were passed at meeting of the Yindjibarndi native title claim group. The validity of the resolutions was disputed, with the resolutions supported by individuals who were represented by the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC) and opposed by those represented by the Yindjibarndi Aboriginal Corporation (YAC).
A second Yindjibarndi claim group meeting was held in 2012. Resolutions were passed at that meeting withdrawing authorisation of the Current Applicant and authorising a Replacement Applicant to the Yindjibarndi [No 1] Application, subject to certain conditions.
Issues
The Replacement Applicant argued that after a series of resolutions at the 2012 meeting the native title claim group resolved that the Current Applicant was no longer authorised by the Yindjibarndi native title claim group and that it be replaced by 12 named persons drawn from that group as the Replacement Applicant, together with another member of the Yindjibarndi native title claim group who passed away after the 2012 meeting but prior to the making of this application.
The main area of dispute related to the process and mechanisms by which the decisions were reached and recorded at the 2012 meeting.
Ms Sandy and Ms Allen claimed:
no decision was made at the 2012 meeting which satisfied the requirements of s 251B of the Native Title Act 1993 (Cth) (NTA) because the meeting did not first determine whether there was a decision-making process under traditional laws and customs of the native title claim group that must be complied with or not.
The communal nature of the process requires a communal decision; and that ordinarily implies a unanimous decision, or a decision without substantial dissent, unless there is a clear unanimous decision that a particular matter be decided by a majority. In this instance the authorisation decisions were reached only on a 60/40 split whereas the authorisation decision at the 2011 meeting was unanimous.
Even if the Court is satisfied that there is, at a technical level, authorisation within the meaning of the NTA, the 2012 meeting would effectively place one of the two factions of the native title claim group in control of all decisions concerning the native title application through the agency of YAC which would have potential, particularly in the present circumstances of the factional dispute, to result in decisions of YAC ‘oppressive to, unfairly prejudicial to or unfairly discriminatory against the 283 members of the native title claim group who have aligned themselves with WMYAC’.
The best opportunity to resolve the stalemate is if the whole applicant group has the general support of the native title claim group by representing both of the factions in dispute.
Findings
The Court made the following findings of fact: the application was part of the proceeding, each member of the Replacement Applicant is a member of the Yindjibarndi native title claim group and it was common ground that there is no relevant process of decision-making that under the traditional laws and customs of the Yindjibarndi people had to be complied with in relation to the granting of authorisation.
McKerracher J held that:
it was not necessary for the group to make a decision about the applicability of a traditional decision-making process for meetings before members can validly resolve to remove an applicant of a native title determination application.
given the division present within the Yindjibarndi native title claim group, to suggest that unanimous or near unanimous approval of the decision-making process was required would ‘make it extremely difficult if not impossible for a claimant group to progress a claim’.
all parties present at the meeting accepted the form of decision-making proposed both generally and specifically in each instance where there was any departure for the agreed process.
For these reasons, all of the technical arguments regarding compliance with the NTA fall away.
Exercise of Court's Discretion
His Honour noted that the Court had a residual discretion to refuse the application under s66B NTA to replace the applicant and a decision had to be made as to whether the fact that one minority group, albeit a substantial minority, will not be represented in what would be the Replacement Applicant is sufficient a reason to refuse the application.
His Honour considered that it was clear that the native title group as a whole has put its trust and authority in the Replacement Applicant. Numerous attempts have been made to mediate the dispute between the two factions, which have been time consuming, expensive and charged with emotional and other considerations.
Weighing up the different considerations, the Court concluded, ‘Although considerations are finally balanced, in my view, the time has come for the claim to move on. ...There is no technical reason why the Replacement Applicant should not succeed in their application and the potential disharmony between the two groups is unlikely to be resolved simply by refusing the application.'
Orders
Within 7 days the Replacement Applicant file a minute of final orders reflecting the reasons for judgment.