Rares J
In this case, the Court considered an interlocutory application to replace a native title claimant applicant with seven other individuals (the Adams applicant). The existing applicant was pressing for determination of an exclusive right of the Yindjibarndi people to control access to areas of their traditional land and waters, including a large iron ore mine, the Solomon mine, operated by the Fortescue Metals Group Limited or one of its related companies (FMG). The Western Australian State government, FMG, Hancock Prospecting Pty Ltd and other respondents accepted the Yindjibarndi people have non-exclusive native title rights and interests but opposed recognition of significant exclusive native title rights and interests in the claim area.
The Adams applicant claimed it was authorised to replace the current applicant by a secret ballot held on 23 June 2015 and authorised to agree to a consent determination similar to the Full Federal Court in Moses v Western Australia (2007) 160 FCR 148 (which recognised that a differently constituted, but related, claim group of Yindjibarndi people had only non-exclusive native title rights and interests in neighbouring land and waters).
If valid, the consequences of the secret ballot meant the Adams applicant would consent to a native title determination that reflected the position of the State, FMG and other respondents and any further hearing was redundant.
The central issues were:
Did the procedure that the Adams applicant used to for voting on 23 June 2015 amount to a process that complied with the requirements of s 251B of the Native Title Act 1993 (Cth) (NTA?
Was notice of the meeting sufficient, and did it enable people to judge for themselves whether to attend and or vote or leave the matter to be determined by the majority who would attend and vote on it?
Has the Adams applicant established that the Court should exercise its discretion under s 66B(2) of the NTA to replace the current applicant?
Voting by secret ballot was conducted on 23 June 2015 in Perth, Carnarvon and Roebourne. No meeting occurred but an information session was held at the back of a Roebourne hall on the day.
The Adams applicant argued that there was no requirement for a meeting in s 251B(1) of the NTA and voting can occur in any particular form or process that is adopted by the claimants but conceded that no authorisation meeting occurred because of the voting in Perth and Carnarvon.
The Adams applicant denied that the meeting notice was deficient and argued that it was not relevant for the claim group to know that FMG and the Adams applicant's lawyers had played a part in organising and paying for aspects of the logistics of the 'meeting' and voting.
Issue 1 - The process issue
The Court held that the process used by the Adams applicant to seek authorisation to replace the existing native title claimant did not comply with the requirements of s 251B of the Act because:
the notice and resolutions did not identify with any precision the people who comprised the ‘Yindjibarndi #1 native title claim group; and
450 known members of the 870 member claim group were not sent a copy of the notice.
Issue 2 - The notice issue
Justice Rares found that the meeting notice was capable of misleading the people it was addressed to because it did not contain the full text of the resolutions, did not explain that the purpose was to establish a voting procedure and not a meeting, did not contain sufficient information to allow someone to judge whether to attend and vote or not and recipients and people who read the resolutions and voted on them would not have understood what would happen if the authorisations and directions in the resolutions were given to the Adams applicants.
His Honour found that the notice was calculated to mislead in certain respects and a notice calling a meeting that the issuer does not intend to hold is not a proper foundation for an authorisation process under s 251B of the NTA.
Issue 3 - Discretion issue
Justice Rares declined to exercise his discretion under s 66B(2) of the NTA because he was not satisfied that the Adams applicant was authorised under s 251B of the Act. Importantly, even if it was, the Court was not satisfied that the process and its results were fairly representative of either the claim group or its informed consent. Deficiencies in the process and notice and other matters satisfied the Court there were reasonable grounds to believe a majority of the claim group may have been prevented from voting.
In addition:
there was a close correspondence between those who voted ‘Yes’ in Roebourne and the use of 180 $400 grocery vouchers provided by Wirlu-Murra Yindjibarndi Aboriginal Corporation after the close of voting following word of mouth that supporters could collect a voucher once they had voted. These actions had the appearance of rewarding members associated with the proponents of the voting, and excluding those who might have opposed the resolutions.
The significant role of FMG in the promotion and conduct of the meeting and the benefit FMG would receive if resolution 5 was passed were not disclosed.
the result of the vote may have been influenced if members had been informed that resolution 5 reflected FMG's position in the litigation and FMG was not conceding, as it could, that a determination of exclusive possession (as sought by the existing applicant) should be made.
Justice Rares was not satisfied that the vote was an expression of the informed wishes of the majority of the claim group and dismissed the s 66B application.