Murphy J made orders to grant leave to the applicant to amend the description of the native title claim group in the claimant application; and to jointly replace Mr Akiba as the applicant with Mr Lui Ned David, Mr Alick Tipoti, Mr Troy Laza, Mr Iona Manas, Mr David Bosun, Mr Frank N Fauid, Mr John Morris, Mr Kabay Tamu, Mr Ron Day, Mr Maluwap Nona, Mr Kapua Gutchen and Mr Jerry Dixie Stephen.
Replacement of applicant
The Torres Strait Regional Seas Native Title Determination Claimant Application (Sea Claim) was lodged in 2001. Finn J made orders that separated the Sea Claim into two parts (Sea Claim Part A and Sea Claim Part B) with the former to be considered separately and in advance of the latter. In 2010, Finn J held that native title exists over most of the waters of Sea Claim Part A.
When the Sea Claim was filed in 2001, the applicant comprised four persons including Mr Akiba, each of whom represented one of four regional cluster groups of Torres Strait Island communities and were living descendants of particular apical ancestors.
By the time of Finn J’s decision that native title existed in most of Sea Claim Part A, only two of the original applicants were still alive. At the time of this proceeding, Mr Akiba is 82 years old and the only surviving member of the applicant. Murphy J noted at para [10] that Mr Akiba is from Saibai in the Torres Strait and is only authorised to represent the Top Western islands. Mr Akiba argued that he 'cannot talk for the Part B Claim sea country because it is not my sea country' Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336 (Akiba) at [12].
Claim group composition
In Akiba, Mortimer J considered it necessary for an authorisation meeting to occur to find individuals who could be authorised to act on behalf of the Part B Claim. In late November 2017, Mortimer J conducted a three-day case management hearing on Thursday Island where she ordered that Mr Ned David, Ms Garagu Kanai and Mr Malawup Nona be joined as respondents to the proceeding.
In this proceeding, the applicant sought leave to amend the claim group description again in the form of a proposed Fourth Amended Torres Strait Regional Seas Native Title Claim Claimant Application. His Honour noted at para [14] that none of the respondents opposed the claim group amendment, but that the State had initially argued that the newly proposed description of the claim group could cause uncertainty. Unlike in the Part A Determination (Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643), this new description sought to identify the claim group by reference to identified Torres Strait communities rather than by descent from named apical ancestors.
In an effort to address the State’s concerns, the applicant proposed adding a new paragraph 14A to the proposed amended application. The State accepted this new paragraph and withdrew its opposition. The proposed amendments included:
Removing members of the island communities of Gumulgal, Saibailgal, Boigulgal and Dauanalgal from the claim group for Sea Claim Part B (at para [18]); and
Membership of the Sea Claim Part B claim group is determined by reference to the nine island communities (Meriam Le; Erubam Le; Ugarem Le; Masigalgal; Porumalgal; Warraberalgal; Iamalgal; Badulgal; and Mualgal) instead of by reference to their being the living descendants of the named apical ancestors listed in Attachment A (as currently drafted) (at para [19]).
The new paragraph 14A acknowledges that membership of the relevant island communities comprising the Sea Claim Part B claim group is as determined by Finn J in Order 4(1)(a) to (i) and Schedule 5, clause 2(a) to (i) of the Part A Determination. Order 4(1)(a) to (i) states that native title is held by the members of 9 identified island communities (being those in the amended Sea Claim Part B claim group). Clause 2(a) to (i) of Schedule 5 provides that the members of the identified island communities referred to in Order 4 are the descendants of listed named apical ancestors for each of the identified island communities (at para [20]).
Murphy J noted at para [21] that ‘the amended claim group description therefore operates so that claim group membership is determined by reference to membership of one of the identified island communities and also descent from one of the named apical ancestors’.
Authorisation
His Honour held at para [55] that ‘the notification regime to inform the claim group of the proposal to amend the claim group description and appoint a new applicant was both well-considered and comprehensive’. Murphy J was satisfied at para [55] that all members of the claim group as currently described, and of the proposed amended claim group, were alerted to the calling of the meetings, had been given sufficient time to make arrangements to attend, were able to judge for themselves whether they were entitled to attend and vote at the meetings, and had been given fair notice of the business to be dealt with so that they could make an informed decision whether or not to attend. His Honour was also satisfied that the authorisation meetings were fairly representative of the respective claim groups (at para [58]).
Conclusion
Murphy J concluded at para [62] that it was appropriate to make the order the applicant sought to amend the claim group description. Additionally, his Honour made orders under s 66B to replace Mr Akiba with the prospective applicant as Mr Akiba had consented to his replacement.