In this matter, Reeves J ordered that pursuant to s 66B of the NTA, Edward Ah Sam, Pearl Connelly, Kay Douglas, Norman Douglas, Brian Douglas, Tanya Kum Sing and Ronald Major replace Brenda Lucas, Gabrielle Biffin, Karl Howard, Sharn Fogarty, George Kenny, Tanya Kum Sing and Emily Patricia Asse as the applicant on the Mitakoodi & Mayi people native title application.
This was the second relatively recent s 66B application to replace the current members of the authorised applicant for the Mitakoodi and Mayi application. The amended application was filed with the Court on 13 November 2015. It relates to an area of land and waters in the Cloncurry and Julia Creek districts, extending north from the Selwyn Range along the McKinlay, Fullarton, Cloncurry and Saxby Rivers to the Norman River, covering approximately 29,210 square kilometres.
This current native title determination application is the latest in a long series of such applications, filed with respect to the same claim area dating back to 1996. The first of those applications was lodged with the National Native Title Tribunal in October 1996. Thereafter, four further applications were filed with the Court, one each in November 2000, April 2003, July 2006 and November 2011. The original application and the first three of the aforementioned applications were dismissed by Dowsett J in December 2009 because of non-compliance with an order made in October 2008 ([2009] FCA 1528). The fifth and last application filed in November 2011 was dismissed by Dowsett J in December 2011 at the request of the applicant. The present application for replacement of the applicant was filed on 12 February 2016.
The authorisation meeting issue
One of two forms of decision-making process are to be followed when a native title claim group seeks to authorise an applicant. They are: the form that exists under the traditional laws and customs of the native title claim group concerned or, if that traditional form does not exist, whatever alternative form of decision-making that is agreed to, and adopted by, the members of the native title claim group.
His Honour held that s 251B of the NTA does not contain any requirement that a native title claim group must hold a meeting in order to authorise a person or persons to make a native title determination application on its behalf. It follows that s 251B does not require the agreement to, and adoption of, the alternative decision-making process, nor does it require the authorisation decision that follows the decision-making process so adopted, to be made at a meeting. Nonetheless, the practice of convening and conducting meetings for the purposes of authorising an applicant, or replacement applicant, under s 251B has become the most practical and effective means of achieving that outcome: see Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 (Burragubba) at [29].
To achieve a valid authorisation of an applicant for the purposes of s 251B(b), such a meeting must be convened and conducted in a manner that results in a decision which is made by the whole of the native title claim group in question: see Burragubba at [22]. However, this does not mean that all of the members of the native title claim group have to attend the meeting, but rather that all of the members of the claim group have to be offered a reasonable opportunity to decide whether to attend the meeting: see Burragubba at [31].
Reeves J reiterated the guiding principle that the obligation imposed on the organisers of the Cloncurry meeting was to offer all the members of the Mitakoodi claim group a reasonable opportunity to decide whether to attend the December 2015 meeting. They were not obliged to convene a meeting of all the members of the Mitakoodi claim group. Reeves J concluded at [31] that, in the circumstances, there was nothing unreasonable in the location, or the date, the organisers chose for the meeting and this discharged the organisers’ obligations. Reeves J rejected the current applicants’ contentions that the failure to provide video-conferencing facilities to attend the December 2015 meeting had the consequence that that meeting was not properly constituted for the purposes of s 251B of the NTA.
The decision making process issue
Reeves J stated at [38] that the organisers of the meeting complied with their obligation to offer all the members of the Mitakoodi claim group a reasonable opportunity to decide whether to attend the meeting. The resolutions all accorded with the requirements of s 251B and therefore his Honour rejected the current applicants’ contentions challenging the effectiveness of the decision-making process that was adopted and followed at the Cloncurry meeting. Reeves J considered that all of the replacement applicants had complied with each of the pertinent conditions set out by French J at [17] in Daniel v State of Western Australia [2002] FCA 1147. The third issue raised the question as to whether Reeves J should, in all the circumstances, exercise his discretion to make the order and his Honour concluded that he would for the reasons set out at [40] and he made the orders sought by the replacement applicants.