Reeves J
In this matter the Court considered competing applications to change the composition of the Bigambul Native Title Claim Group (the Bigambul NTCG) and a related application to change the authorised applicant for the Bigambul NTCG.
The first application in time (filed 26 October 2011) was based on a meeting in the Brisbane suburb of Carseldine (Carseldine applicants). The second application (filed 4 March 2013) was filed by the Bigambul Applicant. It was based on two meetings held in 2013: one at Cherbourg and one in Brisbane.
In summary, the Carseldine applicants wanted to remove an apical ancestor, Sally, from the Bigambul NTCG and replace the Bigambul Applicant with a new group of Bigambul People. The Bigambul Applicant agreed that Sally should be removed as an apical ancestor but said her removal should occur concurrently with the addition of six new apical ancestors for the Bigambul NTCG. The Bigambul Applicant also opposed its replacement as the authorised applicant for the claim.
Validity of the Meeting notices
The issues at the heart or each application were whether the meeting notices gave adequate and proper notice of the business to be conducted at those meetings such that the resolutions passed constituted the informed and legitimate views of the whole of the Bigambul NTCG.
Notice for the Carseldine meeting
The notice for the Carseldine meeting stated that at least some of the apical ancestors could be removed at the meeting. Applying the principles outlined by Rares J in Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40] - [42] Reeves J did not consider the Carseldine notice was adequate to provide the descendants of Sally with a fair opportunity to decide whether to attend the meeting as the notice was in vague and ambiguous terms.
Reeves J also held that, whether the proposal was to add an apical ancestor or to remove one, the notice of meeting must make it clear to anyone in the native title claim group who may be affected by the matters to be considered at the meeting that such a situation may arise at the meeting.
Notice for the Cherbourg Meeting
Reeves J did not consider the Cherbourg notice in any detail as the Bigambul Applicant had agreed that the notice should have, and did not, specify which apical ancestor may be affected by the decisions to be taken at that meeting. The Court found the notice for the Cherbourg meeting was not adequate to provide the descendants of Sally with a fair opportunity to decide whether to attend that meeting.
Notice for the Brisbane Meeting
The Bigambul Applicant submitted that the Cherbourg meeting should not be considered in isolation. Instead, it should be considered in the context of the two-step process which was followed, including the Brisbane meeting.
Reeves J found this approach defective. Although the Cherbourg meeting was intended to be a meeting of the existing Bigambul NTCG to determine how the claim group was to be reconstituted (step one) and the Brisbane meeting was intended to be a meeting of the new or reconstituted Bigambul NTCG to decide to authorise a new applicant (step two) the Brisbane meeting did not include the descendants of Sally who had attended the Cherbourg meeting.
The Court concluded that the Brisbane notice was not an invitation to any and all of the descendants of Sally to attend the Brisbane meeting and this meant the Brisbane meeting was not a meeting of the whole of the existing Bigambul NTCG. Instead, it was a meeting of the new or reconstituted Bigambul NTCG.
Because of the inadequacy of the notice for the Cherbourg meeting Reeves J did not consider the attendance numbers and voting margins or patterns at either meeting relevant in determining the views of the existing Bigambul NTCG.
The Court found that the same consequences as the Carseldine and Cherbourg meetings flowed for the Brisbane meeting and the Bigambul Applicant’s application was dismissed.
Future conduct in these proceedings
His Honour noted that dismissal of the current applications based on common procedural defects was unlikely to resolve the underlying dispute. The Court noted that the critical underlying dispute within the Bigambul NTCG relates to the composition of the claim group. This is essentially a matter for the native title claim group itself to determine, acting in accordance with its traditional laws and customs.
Reeves J held that the long history of disputation between these two groups within the Bigambul NTCG, meant it was unlikely that these preliminary matters would be readily agreed without the assistance of an independent third party.
Reeves J also held that because the two groups had approximately equal sizes, the Court does not consider the Carseldine applicants could be characterised as a dissentient minority seeking to raise an intramural dispute.
As the Bigambul Applicant remains the authorised applicant for the existing Bigambul NTCG the Court did not consider it necessary to make preservation orders of the kind that were made by Rares J in Mandandanji at the present time.
Accordingly, the Court proposed to refer the parties to mediation before the Deputy District Registrar (Native Title) to attempt to reach agreement about all of the preliminary matters necessary to ensure that the meeting or meetings of the Bigambul claim group are convened and conducted.
Orders
The application filed by the Carseldine applicants on 26 October 2011 be dismissed.
The application filed by the Bigambul Applicant on 4 March 2013 be dismissed.