In this case Rangiah J ordered that Milton Seeka Savage, Donald Paul Marou, Thomas Ned Savage, Paul Tom and Elizah Wasaga (replacement applicant) jointly replace Isaac Savage, Milton Savage, Harry Seriat, Paul Tom and Pearson Wigness (current applicant) pursuant to an application made under s 66B(1) of the Native Title Act 1993 (Cth) (NTA).
An interlocutory application was filed in each of the three applications for determinations of native title made on behalf of the Kaurareg People (QUD26/2019, QUD10/2019, QUD24/2019) seeking orders to replace the applicant. The replacement of the applicant was supported by resolutions carried unanimously at a meeting of members of the claim group held on 27 July 2019. Harry Seriat opposed each application, arguing that French J held in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (‘Bolton’) that persons attending an authorisation meeting must be ‘fairly representative’ of the native title claim group in order for the meeting to make a valid decision. Mr Seriat submitted that the Kaurareg People are descended from twelve apical ancestors, and 29 of the 55 people who attended the meeting represented one descent-line (family group), 5 family groups had no representation at the meeting at all, and no members from his family group attended the meeting.
Section 251B(b) of the NTA requires authorisation by a process agreed by, “The persons in the native title claim group”. At [19] Rangiah J interprets French J’s judgment in Bolton with respect to this section: ‘Since the authorisation meetings were not attended by all the members of the relevant claim group, it had to be shown that those who did attend and made the relevant decisions represented the claim group as a whole… If there had been adequate notification of the meeting and its business to the members of the claim group, it could be inferred that those who did not attend chose to leave the decision-making for the claim group to those who did attend.’
What is required by s251B(b) NTA is that the members of a native title claim group be given reasonable opportunity to attend and participate in an authorisation meeting. Subject to any agreed or mandatory traditional decision-making process to the contrary, there is no requirement that all the members or clans or family groups or other components of the claim group must actually participate in the decision-making process in order for there to be a decision by, “the persons in the native title claim group.” Any construction of s 251B(b) to the contrary would mean a segment of the claim group could effectively veto any decision-making by the claim group by failing or refusing to attend an authorisation meeting.
Mr Seriat did not suggest that there was inadequate advertising or notification of the claim group meeting or of the decisions to be made. The claim group was notified that the meeting would consider whether to replace the applicant. His Honour held at [28] that Mr Seriat and his family group were given reasonable opportunity to attend and participate, which they chose not to. In doing so, they left it to those who did attend to represent the whole claim group when making relevant decisions. Thus, Rangiah J found the current applicant was no longer authorised by the claim group and the replacement applicant is authorised by the claim group to deal with matters arising in relation to the application and made orders accordingly.