Mortimer J
This matter concerned two applications in ongoing proceedings over the land and high waters of two islands in the Torres Strait: Warral and Ului. Firstly, leave was sought to amend the native title claim under s 64(1A) of the Native Title Act 1993 (Cth) (NTA) to replace Mr Nona with nine individuals as the applicant for the Badu people. The second application was a joinder application filed by the Badulgal people who disputed the proposed changes. Mortimer J granted each application. The respondents were the State of Queensland and the Torres Shire Council. The third and fourth respondents did not make submissions.
Background
Mr Nona, the original Badu (or Badulgal) applicant, began the claim in 2002. Due to overlap concerns, the Court ordered mediation between the Badulgal, Mualgal and Kaurareg people in 2014.
Decision
(1) Replacing the Applicant
The Badu people applied under s 64(1A) NTA to amend the claim, seeking to substitute the nine individuals as the applicant under s 66B of the NTA. The purpose of this was to ensure equal representation of the Badulgal, Mualgal and Kaurareg people in the claim . This was consented to by Mr Nona’s submissions who stated he wished to be replaced to hand over responsibilities to the next generation.
Mortimer J noted that s 64(1A) of the NTA relates to applications to amend a claim to reduce the area of land or waters covered by the application, and that r 8.21 of the Federal Court Rules 2011 (Cth) should have been relied on. However, Her Honour proceeded as the use of s 64(1A) of the NTA was not contested. The section does not require group authorisation, but it was held that changing the composition of the applicant is ‘the kind of amendment which must be discussed and endorsed at claim group level’ as it is a fundamental change to the claim. Further, the change must be authorised by: (1) the existing claim group; and (2) the proposed claim group. The need for authorisation triggered s 251B of the NTA. Mortimer J noted that the procedural flexibility contemplated by the section requires a balance between ensuring the process is culturally adapted to the claim group while also sufficiently precise to be utilised as evidence in court [79]. The State submitted, and Her Honour upheld, that the authorisation process demands sufficient notification of a meeting identifying who is able to attend and vote, and the issues to be decided.
The Badulgal people submitted that the notice of the meetings was inadequate. Her Honour agreed that it failed to highlight the criticality of the decision to be made (changing the traditional ownership reflected in the claim), but was generally sufficient. The Badulgal also contended that they lacked representation, with twenty Badulgal attendees and fifty-four absentees, as the meeting coincided with the narrow cray fishing season. Five of the attendees opposed the shared model. The inaccuracy of the minutes, which allegedly lacked detail of objections and dissent, was also raised.
Mortimer J accepted that the meeting’s timing had reduced the Badulgal’s reasonable opportunity to attend [120] and expressed concern about the minutes not being authorised by attendees. However, the submission that s 251B NTA requires that group representatives at a meeting must be proportional to the claim group was rejected. Consideration of whether attendees were fairly representative is permissible. The amendment to reflect a shared claim was deemed satisfactorily authorised. Any reservations were deemed to be appropriately dealt with through granting the Badulgal’s joinder application.
(2) Joinder Application
The Badulgal peoples’ joinder application was based on submissions that they are primary owners of the island with exclusive, or at least superior, native title to the Mualgal and Kaurareg people. They thereby disputed the application that equally reflected the three groups, which would confer the Mualgal and Kaurareg people greater rights than possessed under customary law. Overall, the joinder applicants argued the shared claim adversely affected their native title interests, and the state made submissions to confirm this.
Granting the joinder application would mean the proceedings would go to trial. Given this, Mortimer J considered relevant factors: seventeen years had passed since the notification period with no explanation for the other two groups’ delay; it was indiscernible to assess how many of the Badulgal attendees actually endorsed the resolutions; attendees may not have been fairly representative; and English, the fourth language of most Badulgal people, was used at the meetings without translation. Mortimer J held language is an issue requiring ‘great care’ and ‘no assumptions’ [174]. It was also noted that affidavits were not cross examined, which could have aided in exemplifying conflict within a claim group.
At [132], Mortimer J held that the evidence of the Badulgal people regarding the meeting attendance prevailed over evidence provided by an anthropologist who had worked on the matter for 20 years as the Badu were better informants of knowledge about the meeting and island circumstances. In light of these considerations, the joinder application was granted.