In this case, Reeves J considered an application made under s 66B(1) of the Native Title Act 1993 (Cth) (‘NTA’) by the Danggan Balun (Five Rivers) People to replace the authorised applicant for their native title determination application. The application was brought by the proposed replacement applicant and was not opposed by the existing authorised applicant. Additionally, the proposed replacement applicant sought leave under r 8.21 of the Federal Court Rules 2011 (Cth) to further amend the claimant application. The proposed amendment has been authorised by both the current Danggan Balun claim group and the proposed amended claim group.
Application to Replace Applicant
The principles bearing on an application to replace an authorised applicant under s 66B of the NTA are well-established. Citing French J in Daniel v State of Western Australia [2002] FCA 1147, his honour sets out five conditions for a successful application:
There is a claimant application.
Each applicant for an order under s 66B is a member of the native title claim group.
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.
Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.
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.
His honour adds, ‘in addition to these conditions, the Court has a discretion to exercise in deciding whether to grant an application of this kind. Continuing at [15], ‘Alternative condition 4 does not arise in this matter and there is no dispute that conditions 1 and 2 have been met.
ESJ Law’s position
ESJ Law questioned the validity of the authorisation provided by the Danggan Balun claim group, which is central to conditions 3 and 5. They claim that process was fundamentally flawed because it did not follow the decision-making process which, they claim, existed under the traditional laws and customs of the Danggan Balun claim group in accordance with s 251B(a)’ of the NTA.
His honour rejected the notion that there was an existing decision-making process under the traditional laws and customs of the Danggan Balun claim group. At [21] his honour concludes, ‘the members of the existing and proposed Danggan Balun claim groups duly considered the requirements of s 251B of the NTA at the meetings on 15 February 2020 and validly determined that there was no traditional decision-making process which they had to follow and instead agreed to, and adopted, a decision-making process which they did follow… It follows that the proposed replacement applicant has, in my view, met conditions 3 and 5 in Daniel above. It follows that it has met all four of those conditions... Furthermore… I consider it is appropriate to exercise my discretion to replace the existing authorised applicant with the proposed replacement applicant in accordance with the wishes of the Danggan Balun claim group as expressed at those meetings.’
Application to Amend Claimant Application
His honour rejected the first ground of opposition to amend the application, namely the claimed invalidity in the authorisation process for the same reasons outlined in the applicant replacement application. His honour also rejected the contention that the amendment application falls outside the ambit of r 8.21 of the Federal Court Rules 2011 (Cth) because it does not fall within the list of reasons in that rule. Citing the judgment made in McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211 he held at [23] that the words “any reason including” in the chapeau to this rule are sufficiently broad to encompass a wide range of circumstances which could justify an amendment. Hence, the reason does not need to fall within the list of reasons in r 8.21(1).
At [24], his honour concludes ‘in this instance, the fact that the reconstitution of the Danggan Balun claim group was based on anthropological advice and that occasioned the need for the newly constituted Danggan Balun claim group to authorise an applicant to pursue the claim as reconstituted on its behalf provided sufficient reasons for the proposed amendment within the terms of r 8.21.’
Court Orders
Pursuant to s 66B of the Native Title Act 1993 (Cth), the applicant, jointly comprised of: Gordon “Ted” Williams, Roma Pregarc, Ken Markwell, Rory O’Connor, Anthony Dillon, Shaun Davies and Germaine Paulson, is replaced by: Gordon “Ted” Williams, Israel Bundjuri, Louisa Bonner, Shaun Davies, Rose Page, Germaine Paulson and Anthony Dillon.
Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), leave is granted to amend the claimant application in accordance with the proposed amended claimant application annexed to the affidavit of Jessica Marie Ling filed with the interlocutory application on 12 March 2020.
Within fourteen days the applicant file and serve a re-engrossed copy of the amended application bearing a statement specifying the matters mentioned in r 8.23 of the Federal Court Rules 2011 (Cth).