White J
This matter concerned three interlocutory applications seeking orders to replace the original applicants of the Wirangu No 2 Native Title Claim Group claim of native title over a large area of land on Eyre Peninsula in South Australia between (approximately) Elliston in the South and the northern end of Streaky Bay in the North. The proceedings commenced 19 years ago, in 1997.
The first application was filed by six applicants and the last surviving applicant is Ms Wilson. Ms Wilson had terminated the services of South Australian Native Title Services Ltd (SANTS) and notified the Court. .
Orders Sought
Ms Wilson challenging the validity of a claim group meeting resolution which replaced Ms Wilson as applicant. The second application was filed by SANTS. It sought orders to replace the original applicants (no longer authorised) with a group of seven replacements.The further application was brought by Ms Wilson, seeking similar orders to the first. Ms Wilson also sought orders striking out an application for determination of native title, the Far West Sea claim made in Action SAD 71/2016.
Ms Wilson passed away prior to the hearing of the applications.
The s 66B application
The replacement applicants brought the application on the grounds that at a claim group meeting in February 2016, the group resolved to replace the original applicants on the grounds that:
Ms Wilson had indicated that she no longer wished to be the named applicant;
the other original named applicants were deceased;
Ms Wilson was no longer authorised by the claim group.
Ms Wilson opposed the application on the basis that she had not resigned as applicant, and the February 2016 meeting was invalid because SANTS issued the notice after the termination of its retainer.
His Honour found that Ms Wilson had indicated her wish to resign as applicant and rejected the assertion that she was removed without her consent and knowledge, in contravention of s 66B.
His Honour also found that the claim group meeting was validly held, as it had been called by SANTS on 18 December 2015 at the request of Ms Wilson for the purpose of appointing replacement applicants, prior to the termination of its retainer on 23 December 2015. It was considered that SANTS was not present at the meeting as the legal representatives of the group, but was exercising the dispute resolution functions of representative bodies under s 203BF (and possibly 203BB) of the NTA. White J held that regardless, SANTS’ conduct could not effect the validity of resolutions otherwise properly passed by the native title group.
White J considered whether the 12 attendees at the meeting on 12 February 2016 were sufficiently representative of the native title claim group to revoke the authority of the original applicants and authorise the replacements. His Honour held that the meeting had been adequately notified and conducted, a resolution to replace existing applicants may be effective even though passed by a relatively small proportion of the overall claim group and that it was commonplace for meetings of the Wirangu No 2 Native Claim Group to have low attendance rates.
In accordance with s 66B of the NTA White J ordered that the applicants be replaced because all of the original applicants were deceased and did not exercise the Court’s discretion to permit Mr Wilson (son of Ms Wilson) to continue to represent his mother as one of the original applicants given she could no longer provide instructions and the replacement applicants have been authorised by the group.
The three applications filed by Ms Wilson were dismissed.