Barker J
In this decision, Barker J made orders to remove a named applicant (Ms Jean Lockyer) from the Kuruma and Marthudunera Peoples’ native title application under s 66B of the Native Title Act 1993 (Cth) (NTA).
Submissions
The application was brought by the Kuruma Marthudunera claim group on account of Ms Jean Lockyer’s failing health. A claim group meeting was held over two days from 3-4 October 2011 at which the claimants unanimously authorised her removal from the applicant.
Decision
Barker J was satisfied that it was within the Court’s power to remove the applicant as requested. His Honour was satisfied that Ms Lockyer consented to stepping down, on the basis of evidence that she had accepted that her failing health made it difficult for her to continue; that she had known that a meeting was to be held to remove her and she did not take steps to oppose that course of action; and that she had nodded and smiled at a morning tea celebrating her retirement as a named applicant.
Barker J was also satisfied that the meeting held to remove Ms Lockyer and authorise the remaining four individuals to continue as applicant, had met all necessary requirements under s 66B and s 251B of the NTA. The meeting had been advertised between two and four weeks earlier in three regional newspapers, through word of mouth, and also by sending notices to claim group members by use of a contact database at the native title representative body. All such methods of communication had made clear the purpose of the meeting. Twelve claim group members attended the relevant meeting, although Ms Lockyer herself was unable to attend at the time when the relevant resolutions were passed. Counsel for the applicant, a native title representative body lawyer, gave evidence that, in her experience of meetings for this claim group, there was no traditional decision-making process for decisions of the kind contemplated by s 66B, and that the agreed and adopted process of decision-making was by passing resolutions, agreed by consensus, at community meetings after discussions between group members with deference to the knowledge and seniority of the group’s elders. That was the process followed at the relevant meeting, and the resolutions were passed unanimously. Barker J confirmed that there was no legal requirement that the claim group bring evidence supporting the agreement and adoption of its decision-making process, nor that a formal resolution adopting the decision-making process be passed.
Satisfied that all necessary requirements had been met, Barker J gave effect to the application to remove Ms Lockyer from the applicant.