Collier J
In this decision Collier J considered an application by the native title applicants to replace the applicant, change the name of the Application from ‘James Henry Butterworth and Others' to ‘Eileen Beryl Pegler and Others on behalf of the Widi People of the Nebo Estate #1 and file a further amended Application.
The application was opposed by 2 members of the claim group, Ms Vanessa Hunter and Ms Juanita Johnson. If the Application was amended as requested Mary Johnson would be removed as an apical ancestor and this would mean both Ms Hunter and Ms Johnson, who are descendants of Mary Johnson, would no longer be members of the native title claim group.
Issues for Determination
The two issues were before the Court:
whether the claim group had agreed to a decision-making process within the meaning of s251B of the NTA at the first authorisation meeting.
whether the decision-making process was followed at the first and second authorisation meeting.
First meeting
The North Queensland Land Council Native Title Representative Body Aboriginal Corporation filed an affidavit indicating 177 people were registered to attend the claim group’s first meeting and of those, 73 were members of the claim group.
At that meeting the following issues were considered and resolutions passed:
The process of decision making process for the purpose of authorising the proposed resolutions is:
Each person in each group of people descended from a particular apical ancestor or the union of two apical ancestors (“lineage”) must have a reasonable opportunity to participate in the decision-making process;
The proposed resolution will be put in the form of a clearly worded written motion;
The motion will be displayed and read out to the meeting;
The motion must be moved and seconded by a member of the Native Title Claim Group however, it must be decided upon in the following manner:
There shall be a reasonable time for discussion and debate upon the motion before the motion is settled upon;
Each lineage may meet separately today to agree upon the terms of the proposed resolution according to its own processes;
A lineage is taken to have agreed upon the terms of the proposed resolution when its decision to agree is reported to the meeting of the Native Title claim Group through a lineage representative;
The Native Title Claim Group is taken to have agreed upon the terms of the proposed resolution when there is a consensus;
No one person or lineage has a right of veto; and
If any person publicly disagrees the name and lineage of the person shall be noted for the record.
9 lineages agreed to the decision making process, 3 disagreed and 4 lineages were not in attendance.
It was also resolved to amend the claim group by removing certain apical ancestors from the claim group description with the consequence that the descents of those apical ancestors are no longer members of the claim group in the proceedings. The apical ancestors to be removed include Mary Johnson, who is the ancestor of Ms Hunter and Ms Johnson. 7 lineages agreed with the proposed resolution, 4 disagreed and 5 were not in attendance.
Second meeting
After the amended claim group resolution was passed, the first meeting closed and a second authorisation meeting immediately commenced. This meeting was only open to descendants of the newly described claim group and the new members unanimously resolved to replace the applicant.
Ms Hunter and Ms Johnson argued that the decision making process was flawed because each person in the claim group (including those not present) was not given a reasonable time to participate in the decision-making process and the decision-making process was not followed.
The Court considered the requirements of s 251B of the NTA at [13] and evidence of the meeting process and business transacted at the meeting at [14] and concluded that members of the claim group were given a reasonable opportunity to participate in the decision-making process.
Collier J acknowledged there had been strong disagreement within the claim group, but considered that the strong agreement within the majority of the claim group constituted “general agreement” of the claim group and the evidence showed that the claim group agreed that majority decisions would constitute consensus.
Conclusion
The Court was satisfied that the native title claim group agreed to and adopted a decision-making process within the meaning of s 251B(b) of the NTA at the first authorisation meeting, and that they followed that decision-making process at both the first and the second authorisation meetings.