Rangiah J
In this matter, Rangiah J heard an interlocutory application pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA) seeking an order that 19 persons (the replacement applicant) replace the current applicant of the native title determination application filed on behalf of the Gomeroi people.
The application relied upon resolutions carried at a meeting of the native title claim group on 19 and 20 July 2016 (the 2016 authorisation meeting). The application was opposed by the current applicant, who alleged that the resolutions did not reflect decisions by the whole of the claim group to remove the current applicant and authorise the replacement applicant.
The current applicant was authorised by the claim group at a meeting held on 10 and 11 May 2013 (the 2013 authorisation meeting). The claim group passed a resolution at that meeting that it wished to have 19 individuals as the applicant, each drawn from one of the 19 regions which were said to comprise the traditional Gomeroi country. Resolution #10 also passed at that meeting and outlined the expectations of the claim group for the applicant. It stated that the applicant may not attempt to terminate the services of NTSCORP Limited or the legal practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi people native title claim group, and must not execute any agreement conferring benefits or obligation on Gomeroi People, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so. The resolution stated that the applicant or any person comprising the applicant may be replaced for acting contrary to those expectations and therefore exceeding the authority conferred on them by the Gomeroi people native title claim group.
The current applicant did not adhere to Resolution #10 in two respects: (1) the current applicant appointed Sam Hegney Solicitors to prosecute the native title claim and associated legal matters in place of Robert Powrie, a solicitor funded by NTSCORP; (2) the current applicant, by majority, agreed to the grant of a mining lease in favour of three mining companies. The authority of the claim group for these actions was not obtained.
On 8 June 2016, NTSCORP decided to convene the 2016 authorisation meeting. The meeting was to be held to, among other things, enable the Gomeroi claim group to consider whether to replace the current applicant. Alexander Chalmers, a solicitor employed by NTSCORP, deposed that the decision was based on requests received by NTSCORP from various Gomeroi claim group members.
Eleven resolutions were put to that meeting, the most significant of which were:
Resolution #6 – the Gomeroi People native title claim group resolve to remove the following 19 people jointly comprising the Applicant and confirm that they are no longer authorised by the Gomeroi People native title claim group: Maureen Sulter, Susan Smith, Michael Anderson, Raymond Welsh (Snr), Richard Green, Greg Griffiths, , Elaine Binge, Alfred Priestly, Leslie ‘Jacko’ Woodbridge, Ray Tighe, Alfred Boney, Anthony Munro, Madeline McGrady, Bob Weatherall, Jason Wilson, Lyall Munro Jnr, Clifford Toomey, Burrul Galigabali (dec), Norman McGrady (dec).
Resolution #11 – the Gomeroi People native title claim group confirm that the 19 people they have elected and authorised as their Applicant in native title determination application NSD2308/2011 are Jason Wilson, Leslie Duncan, Marcus Waters, Malcolm Talbot, Barry French, Garry Binge, Raymond Weatherall, Steven Talbott, Donald Craigie, Dennis Griffen, Jennifer Bennett, Sheryl Barnes, Roslyn Nean, Sharon Porter, Emily Roberts, Fay Twidale, Tania Matthews, Natasha Talbott and Maria Cutmore.
At paragraph [35] the Court set out the five conditions that must be satisfied for a successful s 66B application set out by French J in Daniel v State of Western Australia [2002] FCA 1147 at [17].
The replacement applicant relied on the first and third conditions:
The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.
The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it.
A further issue was whether, if the five conditions were satisfied, the Court should refuse to make the order in the exercise of its discretion under s 66B(2) NTA.
The current applicant submitted that the interlocutory application should be dismissed because:
The notice of the 2016 authorisation meeting drafted by NTSCORP was inadequate.
The 2016 authorisation meeting was not adequately advertised.
The composition of the persons attending the 2016 authorisation meeting was not appropriately representative of the Gomeroi Claim Group.
The conduct of the 2016 authorisation meeting was irregular and/or unfair.
The replacement applicant was not validly elected and authorised by those in attendance at the 2016 authorisation meeting.
The replacement applicant is not representative of the Gomeroi Claim Group.
The 2016 authorisation meeting was not convened by NTSCORP for a purpose permitted under the Act.
The Court’s discretion should be exercised against making an order for the replacement of the current applicant.
The current applicant asserted that there were misrepresentations in the meeting notice and procedural defects in the conduct of and voting at the meeting. The current applicants relied on cases referring to the necessity for a ‘valid’ or ‘properly conducted’ meeting of the claim group. His Honour considered ‘prescriptive expressions such as these are unhelpful in a context where, as Reeves J pointed out in Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 at [21] at [29], the Act does not require an authorisation meeting to be held.’ The NTA does not prescribe rules for the conduct of authorisation meetings, or conditions for their validity.
[47] The questions that must be answered under s 66B NTA are whether the current applicant is no longer authorised, and whether the proposed replacement applicant is authorised, by the claim group to make the application and deal with matters arising in relation to it. Rangiah J noted that defects, whether substantive or procedural, do not necessarily require refusal of an order for replacement of the applicant: see, for example, Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 at [14], Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406 at [71].
[54] Rangiah J acknowledged the practical difficulties involved in organising and conducting a claim group meeting, referring to Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [28], where Stone J said: ‘I do not think, however, that the Act requires decisions of native title groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised.’ His Honour preferred to adopt ‘a robust approach…to determining whether or not the claim group as a whole has made any decision about authorisation’.
Whether notice was only directed to claim group members with similar concerns
The current applicant submitted that the meeting notice was a notice for a meeting of the members of the Gomeroi claim group who held the same concerns as those calling the meeting. The meeting notice was expressly addressed to ‘all’ members of the Gomeroi claim group and invited all such members to attend the meeting. It indicated that a purpose of the meeting was for the claim group to make a decision as to whether to continue to authorise the current applicant, or to replace the current applicant. It also set out the two particular concerns of those who wished the meeting to be called.
Rangiah J stated at [65] that ‘it is difficult to see why the articulation of these concerns should mean that the meeting was called only for those who shared the same concerns…The meeting notice made it adequately clear that any member of the claim group who did not share the concerns expressed, or who did not want the current applicant to be replaced, could attend the meeting and have their say upon the proposed resolutions.’ At [63], his Honour rejected the current applicant’s reliance on Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 and held that the meeting notice cannot be described as calling a meeting only for those members of the claim group who held the same concerns.
Whether the meeting notice was misleading
[66] The Court stated that the notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal, or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. The current applicant submitted that the notice was misleading because it stated that the current applicant decided to change lawyers and execute the agreement with the mining companies without the authority of the claim group, whereas the current applicant was so authorised. Rangiah J noted that the current applicant’s argument ‘seemed to be that by virtue of its authorisation as the applicant, it was empowered under s 62A of the NTA to ‘deal with all matters arising under this Act in relation to the application’, including deciding which lawyers should represent the claim group and to entering into agreements under s 31 of the NTA’ (at [69]).
Whether the meeting notice was misleading by stating the current applicant acted without authority of claim group
In Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75, Barker J (Reeves J concurring), held at [80]–[82] that the claim group may place limits on the authority that the applicant would otherwise have. At [87]–[91] it was accepted that a claim group may place limits upon the power of the applicant to change lawyers. Barker J also accepted that the claim group may restrict the power of the applicant to enter into an agreement under s 31(1)(b) of the NTA. Rangiah J held that the statement in the notice is supported by those findings and therefore not misleading. Even if it was misleading, his Honour found that the statement was unlikely to have made any material difference to the outcome of the meeting [73].
Whether the meeting notice was misleading as to when registration would take place
The Current Applicant submitted that the meeting notice clearly indicated that registration would only be permitted from 8:00 am to 12:00 pm on Day 1. The Court rejected that submission, on the basis that there was no evidence of anyone not attending the meeting due to that understanding of the notice.
Whether meeting notice was misleading by stating that a large number of requests to call the meeting had been received
The current applicant submitted that the only request that had been received by NTSCORP was in the form of the petition. They further submitted that the petition may have been fabricated. The Court accepted the evidence of Leslie (Phil) Duncan, who prepared the petition. There was no evidence from any of the signatories that they had not signed the petition and The Court was not prepared to find that Mr Duncan or someone else took the signature pages from another petition and attached them to the petition.
The Court held that the petition can be considered to be a request to call a meeting made by each of the individuals who signed it, and found that the meeting notice was accurate, and not misleading, when it said that NTSCORP had received a large number of requests from members of the claim group to call the meeting.
Whether the meeting notice was misleading by failing to disclose NTSCORP’s motives for calling the meeting
The current applicant submitted that the meeting notice was misleading because it failed to disclose that the motivating purposes of NTSCORP were to have itself reinstated as the lawyers for the claim group and to provide a reason to refuse to hand over the file relating to the native title determination application to Mr Hegney. Further, they submitted that the meeting notice failed to disclose the substantial interest NTSCORP had in the outcome of the 2016 authorisation meeting. The current applicant contended that the 2016 authorisation meeting was not convened for a purpose permitted by the NTA.
The notice stated that NTSCORP was assisting in the notification and organisation of the meeting in accordance with their statutory facilitation and assistance in dispute resolution functions under s 203BB and s 203BF of the NTA.
[98] The Court stated that a discretionary statutory power must exercised for a purpose for which the power was granted, and not for an ulterior purpose: Thompson v The Council of the Municipality of Randwick [1950] HCA 33 at 105–106; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board [1935] ArgusLawRp 105 at 468. It is enough to invalidate a decision if an improper purpose was a substantial purpose of the power: Thompson at 106, Samrein at 468.
[104] Rangiah J accepted that it must have been a part of NTSCORP’s motivation for calling the meeting that it (or, at least, the legal practice it funded) had been removed as lawyers for the claim group and it wished to regain its position. That motivation seemed to stem from the current applicant acting contrary to the stated expectations of the claim group as a whole and in circumstances where Resolution #10 indicated that the persons comprising the applicant may be replaced for acting contrary to those expectations. His Honour also accepted that part of NTSCORP’s motivation was to avoid handing over its file to Mr Hegney. However, his Honour did not accept that those matters were a substantial purpose and held that the dominant purpose, of NTSCORP in calling and facilitating the 2016 authorisation meeting, was to assist the claim group following receipt of a number of requests by exercising its facilitation, assistance and dispute resolution of functions under ss 203BB and 203BF of the NTA.
Whether the meeting notice was misleading by failing to identify that the replacement applicant would not consist of representatives of the 19 regions
The current applicant submitted that if the meeting notice had said it was proposed that the applicant would no longer consist of representatives of each of the 19 regions, it is likely that more members of the claim group would have attended the meeting to oppose the motion.
The meeting notice stated that there would be discussion and the making of decisions on whether the claim group wished to continue to authorise the current applicant or replace the current applicant, and if the latter, the claim group would consider resolutions to authorise a new applicant. The 2013 authorisation meeting had resolved to elect the applicant so as to represent each of the 19 regions. However, Rangiah J held that the 2013 Resolution was not binding upon those who attended the 2016 authorisation meeting. It was always possible that if the claim group decided to authorise a new applicant, the new applicant would not be chosen on the same basis as in 2013.
Further, the Court considered that the proposal that the new applicant would not represent the regions, seems to have arisen from the floor of the 2016 authorisation meeting. It does not appear that there was some pre-conceived plan for this to occur.
The Court was satisfied that one of the allegations made by the current applicant, that the meeting notice was misleading, was made out. The notice was misleading because it was ambiguous as to whether registration would be permitted after 12:00pm on Day 1. However, Rangiah J found that none of the allegations if made out were likely to have made a difference to the outcome of the 2016 authorisation meeting.
Whether the 2016 authorisation meeting was adequately advertised
[115] The adequacy of advertising is relevant to the issue of whether members of the claim group were given every reasonable opportunity to make an informed decision as to whether to attend the meeting and to participate in the decision-making process. What is required is that reasonable attempts be made to notify all the members of the claim group who have the capacity to participate in decision-making: cf. Frank on behalf of the Mayala People v State of Western Australia (No 3) [2016] FCA 1255 at [10].
There was no evidence presented that indicated any member of the claim group was unaware of the fact that the meeting had been called and of the business to be dealt with at that meeting. Rangiah J was satisfied that the advertising of the meeting was adequate and was not prepared to infer that other persons did not attend the meeting because they did not receive the meeting notice and did not find out about the meeting and the business to be discussed from some other source.
Whether the composition of the persons attending the 2016 authorisation meeting was appropriately representative of the Gomeroi Claim Group
[137] On the evidence available, the Court did not accept that there was a mandatory traditional process of decision-making that had to be followed at the meeting involving decision-making by persons who together could speak for all of the Gomeroi country. It was therefore open to the claim group to agree upon the process of decision-making.
[139] The Court did not accept that it was necessary for there to be representatives of each of the 19 regions in attendance at the meeting. All that was required was that the members of the claim group be given every reasonable opportunity to participate in the decision-making process.
Whether the meeting degenerated into chaos and whether Mr Bergmann was not independent
[142]–[168] The current applicant submitted that the meeting facilitator, Mr Bergmann failed to conduct the meeting in a fair and proper manner and that Mr Bergmann permitted people to engage in shouting, yelling, swearing and abusive behaviour.
It was submitted that on most occasions Mr Bergmann would decide who the microphone would be passed to by pointing to the person or nodding at them and that, more often than not, a person who was opposed to the current applicant was permitted to speak.
Mr Bergmann of KRED Enterprises was engaged by NTSCORP to facilitate the meeting. Mr Bergmann resides in Broome, Western Australia, and is admitted as a solicitor and barrister. His role involved chairing the meeting, reading to the group’s proposed resolutions and coordinating the counting of votes. In response to the allegation that Mr Bergmann favoured those opposed to the current applicant when distributing microphones during the meeting, Mr Bergmann said that he had not met any of the members of the claim group previously, and was not a position to assess whether an individual was sympathetic to the current applicant or not. He said that he instructed the staff of NTSCORP to distribute the microphones based on the order in which meeting attendees raise their hands to indicate that they wanted to speak. He expressed the opinion that all those attendees who wanted to say something at the meeting were given an opportunity to speak.
Mr Bergmann maintained that he had acted independently and conducted the meeting an impartial way. Rangiah J considered Mr Bergmann to be an honest and reliable witness and that he acted independently and impartially in the way that he conducted the meeting.
The Court did not accept the current applicant’s submission that their treatment at the meeting was such as to cause them to walk out of the meeting, so that the outcome of the meeting did not reflect the decision of the claim group as a whole. The Court found that it was only necessary that the current applicant and their supporters had every reasonable opportunity to attend and participate in the meeting. They were given such an opportunity but elected to remove themselves from the meeting.
Alleged defects in the system of registration and record keeping
[169] The Current Applicant alleged that the system of registration and record keeping at the 2016 authorisation meeting was defective.
Whether there was an error in allowing people to register outside the times stated in the meeting notice
As noted above, Rangiah J rejected the submission that the meeting notice indicated that registration would only be open between 8:00am and 12:00pm on the first day of the meeting. The Court did not find there to be any error in permitting registration outside of those times.
The current applicant further submitted that there was no evidence before the Court that accurately recorded which attendees were verified as members of the claim group, and that there was no evidence as to how the attendance list relied on by the replacement applicant was created, but ample evidence that it was defective.
The procedure adopted by NTSCORP was that those who were verified as members of the claim group from the claim group list were given green wristbands. Only those with green wristbands were entitled to vote at the meeting.
[184] Rangiah J considered the process to have been generally reliable and was not prepared to infer that green wrist bands were erroneously issued in such numbers as to affect the outcomes off the voting at the meeting. Further, like Kiefel J in Butchulla at [29], his Honour found it difficult to believe that members of the claim group would not have immediately spoken out if they observed persons not within the claim group who were voting. The Court was not satisfied that the defects in record keeping pointed to by the current applicant concerning the attendance records reflected broader problems with voting by claim group members, or had any material impact on the voting outcomes of the meeting.
Whether people were able to remove green wristbands or vote without green wristbands
The Court noted that it is possible that there were some mistakes made in the process of registration, but was not satisfied that any such mistakes were likely to be of such magnitude that the voting outcome is likely to have been affected. Rangiah J considered it to be unlikely that members of the group gave their green wristbands to non-members who then fraudulently used the wristbands to vote, while those members procured a second wristband which they used to vote.
Other alleged defects in the conduct of the 2016 authorisation meeting
[200] The current applicant alleged that there were nine further defects in the conduct of the 2016 Authorisation Meeting.1. Whether Resolution #1 was ambiguous
Resolution # 1 stated:
The Gomeroi People native title claim group have agreed to and adopted the following process of decision-making for the purposes of the native title claim:
the decision to be made will be put in the form of a clearly worded written motion;
the motion will be read out to the meeting;
the motion must be moved and seconded by members of the group before it is decided on;
the decision will then be made by the group by a show of hands;
a decision of the majority in relation to the motion shall be a decision of the meeting.
The current applicant submitted that Resolution #1 was ambiguous because it was not clear whether the decision was to be made by a majority of those who registered to vote at the meeting or all those who were present at the time the vote was taken. Rangiah J accepted that the resolution was ambiguous, however the manner in which the decision would be made, was clarified shortly after the resolution was passed by Mr Bergmann, who stated that only those in the room would be counted during voting.
The Court held that the claim group as a whole must be understood to have agreed that the decision of the majority present in the room would be taken to be a decision of the meeting, referring to Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 at [18]: ‘…Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. The claim group as a whole must be understood to have agreed that the decision of the majority present in the room would be taken to be a decision of the meeting.’
Resolution #1 required that a motion must be moved and seconded by members of the group before it is decided on. The current applicant submitted that six members of the replacement applicant were not validly nominated. Rangiah J considered that Resolution # 1 only required a ‘motion’ to be moved and seconded by members of the claim group. The nominations and seconding of the nominations of candidates were not motions, and were not required to be carried out in accordance with Resolution # 1. In any event, his Honour found that while the nominations of Ms Cutmore, Mr Griffen, Ms Talbott and Ms Roberts were inconsistent with Resolution # 1, the claim group by electing those people had decided to depart from the procedure set out in Resolution # 1 in respect of those four persons. That course was open to the claim group and did not require a formal resolution. The Court was satisfied that the irregularities identified did not materially affect the decision of the meeting to authorise the members of the replacement applicant.
The current applicant submitted that the replacement applicant is not appropriately representative of the Gomeroi claim group in accordance with Gomeroi laws and customs. They submitted that decisions concerning all of the claim area must be made by persons who can collectively speak for all of the claim area, which requires representatives of each of the 19 areas. Rangiah J was not satisfied on the evidence that there is a traditional Gomeroi law or custom that requires decision-making of the kind required in respect of a native title application to be made by persons who collectively represent the 19 regions.
Consideration of cumulative effect of defects
[245] The Court held that each of the identified defects in the meeting notice, the registration process, record keeping and the conduct of the meeting, individually or cumulatively, made no material difference to the outcome of the meeting.
Exercise of the discretion
[248] Section 66B(2) of the NTA gives the Court a discretion to refuse to make an order for replacement of the current applicant even if it is satisfied that the grounds set out in s 66B(1) are established. The current applicant submitted that an important discretionary consideration is that there is no indication from the meeting notice or the resolutions passed at the 2016 authorisation meeting of any member of the claim group having any concerns about the manner in which the current applicant had carried out its primary role, in connection with the native title determination application.
They relied on Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373, where Reeves J held that the discretion under s 66B(2) would have been exercised against making an order for replacement of the applicant because there was no indication of any members of the claim group having any concerns about the manner in which the existing applicant was carrying out its primary role of conducting the native title application.
The Court considered this to be important as the application had been on foot for about 13 years and it was imperative that it be brought to finalisation as soon as it was reasonably possible, and that the existing applicant be permitted to continue to pursue the application without the hindrance or disruption that would undoubtedly be associated with the replacement of the applicant.
[250] Rangiah J held that there was a clear indication in the petition, in the meeting notice and in Resolutions #5 and #6 that there was substantial concern among the claim group about the current applicant’s conduct of the native title application. That concern was that the current applicant had replaced NTSCORP (or the legal practice funded by NTSCORP) as their legal representatives in relation to the native title application. This was a concern about the current applicant’s conduct of the application. The Court stated that even if members of the claim group were only dissatisfied with the current applicant’s entry into the s 31 agreement, the Court did not find that there was a sufficient basis to decline to make an order under s 66B.
While the primary function of an applicant is in connection with a native title application, the applicant also has important secondary functions such as entry into agreements under s 31(1)(b) of the NTA. The dissatisfaction of the claim group as a whole expressed in the form of Resolution #6 and #11 with such secondary aspects of the current applicant’s conduct, provided a powerful reason for making the order. The Court distinguished this matter from Burragubba on the basis that the application was commenced six years ago and there is no indication that it would be unduly delayed by the replacement of the applicant.
[255] Rangiah J ordered that the members of the current applicant are no longer authorised by the claim group to make the native title determination application and to deal with the matters arising in relation to it. [265] The Court further ordered that the members of the replacement applicant are authorised by the claim group.