FEDERAL COURT OF AUSTRALIA Johnson, in the matter of Lawson v Lawson [2001] FCA 894 NATIVE TITLE – authorisation of the applicant by the native title claim group - application by a members of the native title claim group to replace the applicants – whether current applicants are no longer authorised by the native title claim group – whether the members of the native title claim group seeking to replace the applicants are authorised by the native title claim group – consideration of traditional decision making process Native Title Act 1993 (Cth), s 61(1), s 66B(1), s 251B(a) Strickland v Native Title Registrar (1999) 168 ALR 242 referred to Western Australia v Strickland (2000) 99 FCR 33 referred to Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 distinguished IN THE MATTER OF DOROTHY LAWSON and PHILIP LAWSON on behalf of the 'POONCARIE' BARKANDJI (PAAKANTYI) PEOPLE and MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS NOEL JOHNSON and SHEILA KIRBY on behalf of the "POONCARIE" BARKANDJI (PAAKANTYI) PEOPLE v DOROTHY LAWSON and PHILIP LAWSON on behalf of the 'POONCARIE' BARKANDJI (PAAKANTYI) PEOPLE & ORS NG 6084 of 1998 STONE J 13 JULY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 6084 OF 1998 IN THE MATTER OF DOROTHY LAWSON and PHILIP LAWSON on behalf of the 'POONCARIE' BARKANDJI (PAAKANTYI) PEOPLE and MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS BETWEEN NOEL JOHNSON and SHEILA KIRBY on behalf of the "POONCARIE" BARKANDJI (PAAKANTYI) PEOPLE APPLICANTS AND DOROTHY LAWSON and PHILIP LAWSON on behalf of the 'POONCARIE' BARKANDJI (PAAKANTYI) PEOPLE FIRST RESPONDENTS MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES SECOND RESPONDENT NEW SOUTH WALES ABORIGINAL LAND COUNCIL THIRD RESPONDENT DARETON LOCAL ABORIGINAL LAND COUNCIL FOURTH RESPONDENT JUDGE: STONE J DATE OF ORDER: 13 JULY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: the notice of motion filed on 27 February 2001 be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 6084 OF 1998 IN THE MATTER OF DOROTHY LAWSON and PHILIP LAWSON on behalf of the 'POONCARIE' BARKANDJI (PAAKANTYI) PEOPLE and MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS BETWEEN NOEL JOHNSON and SHEILA KIRBY on behalf of the "POONCARIE" BARKANDJI (PAAKANTYI) PEOPLE APPLICANTS AND DOROTHY LAWSON and PHILIP LAWSON on behalf of the 'POONCARIE' BARKANDJI (PAAKANTYI) PEOPLE FIRST RESPONDENTS MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES SECOND RESPONDENT NEW SOUTH WALES ABORIGINAL LAND COUNCIL THIRD RESPONDENT DARETON LOCAL ABORIGINAL LAND COUNCIL FOURTH RESPONDENT JUDGE: STONE J DATE: 13 JULY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT introduction 1 On 8 October 1997 Dorothy Mary Lawson and Phillip Mark Lawson ("Lawsons") filed a native title application ("claimant application") on behalf of the Barkandji (Paakantyi) tribal peoples ("Claimant Group"), with the National Native Title Tribunal ("NNTT"), seeking a determination of native title over a large area in south western New South Wales. This was prior to the commencement of amendments to the Native Title Act 1993 (Cth) ("Act") in September 1998. Consequently, when the 1998 amendments came into force, the claim was required to be considered under s 190A of the Act (see Table A, Application, saving or transitional provisions, Pt 4, cl 11(5) in the Notes to the Act). S 190A(6) provides that the Registrar must accept the claim for registration if it satisfies all of the conditions in s 190B and s 190C. The former section deals with the merits of the claim and the latter with procedural and other matters. 2 The claimant application, as amended by leave of this Court on 5 August 1999, was accepted for registration on 29 August 1999 by a delegate of the Native Title Registrar ("Delegate"). 3 On 27 February 2001, Noel Johnson and Sheila Kirby ("Applicants") filed a notice of motion seeking orders, pursuant to s 66B of the Act, that the Lawsons be removed as removed as applicants in this proceeding and that they be replaced by the Applicants. authority of the LAWSONS 4 The Applicants claim that the process of authorisation on which the Lawsons relied in making the claimant application can be used to demonstrate that such authority as they had has been lost and that it is the Applicants who are now authorised to pursue the matter. For this reason, it is necessary to set out in some detail the basis of the Lawsons' claim to authority. Identity of members of Claimant Group 5 Section 61(1) of the Act provides that only certain persons can apply for a native title determination, including a person or persons authorised by all the persons who, "according to their traditional laws and customs", hold native title in the relevant area. The identification of those persons is addressed in s 190B(3) which provides that, before accepting the claim for registration, the Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application; or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. 6 In this case, the persons in the Claimant Group were not named in the amended application. The Delegate was, however, satisfied that the amended application satisfied s 190B(3)(b). He interpreted the evidence supporting the application as establishing that membership of the Claimant Group can arise by descent, marriage or adoption into the group. In the case of marriage or adoption, acceptance into the group is by "endorsement of the family headpersons, this being consistent with traditional law and custom, which in turn is accepted by the entire group of Pooncarrie Barkandji." He went on to state: "In my view, this description is sufficiently precise to allow it [sic] be ascertained whether any particular person is a member of the native title claim group, either by descent from apical ancestors or by a combination of marriage or adoption into the group, self-identification as a member of the group and acceptance into the group according to traditional law and custom, being endorsement by family headpersons. It may be that in order to ascertain whether a person is a member of the group some further inquiries would need to be made to establish whether the criteria described … had been met." Authorisation process 7 Section 251B(a) provides that the authorisation requirement of s 61(1) is met if: "where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process…" 8 The authorisation statement attached as Schedule R to the amended application describes the composition of the Claimant Group, its customary lines of authority, and the current family groups that comprise the Claimant Group. It states that authority is mainly hereditary but with some scope for recognition of individual ability. According to the authorisation statement, there are within the Claimant Group separate extended families, groups of which form "family groups", the members of which claim descent from a common apical ancestor. The head of each individual extended family is known as an "Elder", the definition in the authorisation statement being, "Elders" means the heads of each of the individual extended families within the larger family group. Elders are at least grandparents and in most cases great grandparents …" 9 The head of each family group is a "headperson" defined as, "an Elder who heads and speaks for each of the large family groups and has authority to speak for the tribe …." 10 The authorisation statement describes the main family groups as those that have "continued to reside within the boundaries of the Pooncarrie Barkandji (Paakantyi) homelands and maintained strong continuous physical and spiritual contact with the land". It identifies those families and the headperson of each as follows: Family group Headperson Mitchell Dorothy Lawson Johnson Irene Mitchell Whyman/Brown Noel Johnson Lawson Sheila Kirby Webster Charlotte Jones Naanyas' Mob The authorisation statement states that there is no headperson for this group as the members have intermarried into the other family groups. 11 The authorisation statement makes the following comment: "In addition to hereditary right, the head of each large family groups [sic] has substantial cultural knowledge and experience that when combined with other proven leadership qualities further support, as per traditional law and custom, their right to head and speak for the family group. Further to hereditary right and proven eminiant [sic] ability, a headperson also exhibits other qualities shown through their active interest and involvement in Pooncarrie Barkandki (Paakantyi) matters." Authorisation of the Lawsons 12 Attached to the authorisation statement are the minutes of a meeting of Pooncarrie Barkandji (Paakantyi) senior Elders, held on 14 June 1999. The minutes record the Elders present as Dorothy Lawson, Noel Johnson, Sheila Kirby, Irene Mitchell, Peggy Thomas, Ray Lawson, Roddy Smith, Cora Lawson and Arthur Lawson. Also recorded as present are Mark Dengate, Marie Mitchell and Colin Mitchell. The Minutes record as follows: "Meeting elected Dororthy [sic] Lawson to chair meeting. Noted thatmeeting of heads of family groups and other senior Elders was called to discuss authority to make and ammend [sic] native title applications and deal with the various matters arising from the applications. It was noted that four of the five heads of the family groups, with traditional right to speak for matters relating to Poonacarrie [sic] Barkandji (Paakantyi), were in attendance at this meeting. … It was noted that Webster family Elders, although invited, were not represented at this meeting. Marie Mitchell and Colin Mitchell reported that Mrs Charlette Jones [sic] …had indicated her support for, and her endorsement of, the native title applications made on behalf of the Pooncarrie Barkandji (Paakantyi). The minutes record a number of resolutions that were passed at the meeting, including that the headpersons of each family group as set out in [10] above were confirmed unanimously by the Elders present. There was also a motion, carried unanimously by family group heads present, that: "The heads of the family groups with authority under traditional law to speak on behalf of Pooncarrie Barkandji (Paakantyi) endorse the applications for native title determinations and authorise the respective applicants to make any required ammendments [sic] to the applications or deal with any other matters arising from the applications for determinations of native title." 13 In his reasons for accepting the amended claimant application, the Delegate accepted the description of traditional decision making in the authorisation statement. He found that the Lawsons were authorised to bring the claim in accordance with that process. Despite the original authorisation of the Lawsons being questioned by some of the evidence adduced by the Applicants neither the Lawsons nor the Applicants have sought to challenge the Delegate's acceptance of the claimant application, the description of the Claimant Group's traditional decision making processes or the designation of the persons named in [10] as the family group headpersons. The Applicants' evidence 14 In support of their claim that they, and not the Lawsons, are now authorised by the Claimant Group, the Applicants presented affidavit evidence sworn by seven members of the Claimant Group including themselves. The seven members are three headpersons, Noel Johnson, Sheila Kirby and Irene Mitchell, and four Elders, Roland "Roddy" Smith, Arthur Lawson, Cora Lawson and Ray Lawson. Affidavits in support were also sworn by Dawn Smith, wife of Roland "Roddy" Smith and Colin Chadwick, a solicitor who acts for the Applicants. 15 In their affidavits sworn on 21 February 2001, both of the applicants and Irene Mitchell depose to the fact that the Lawsons were originally authorised to bring this proceeding. They state that at a meeting on 19 February 2001, Irene Mitchell and the two applicants made a decision that the applicants should replace Dorothy Lawson and Phillip Lawson as the persons authorised on behalf of the Claimant Group. Irene Mitchell's statement must be considered in the light of her subsequent affidavit supporting the continued authority of the Lawsons; see [20] below. 16 The evidence of the four Elders, Roland "Roddy" Smith, Arthur Lawson, Cora Lawson and Ray Lawson is confusing. Despite the fact that the minutes of the meeting held on 14 June 1999 (see [14] above) record all four of them as being present at that meeting, they all deny participating in any discussion that determined the headpersons of the Barkandji families to be as set out in the authorisation statement (see [10] and [12] above). They all depose that they have never voted on a resolution adopting those people as head persons for the families. They state that the Applicants are authorised to seek orders replacing Dorothy and Phillip Lawson with themselves in this proceeding. Roland "Roddy" Smith also states that his wife, Dawn Smith, attended all meetings that he attended concerning Barkandji Native Title claims. In her affidavit, Dawn Smith, confirmed this and states that she does not recall being at a meeting where the resolutions noted in the minutes of the meeting of 14 June 1999 were passed. Evidence for the Lawsons 17 The evidence adduced on behalf of the Lawsons consisted of affidavits affirmed by Peggy Thomas and sworn by Irene Mitchell and two affidavits affirmed by Dorothy Lawson. Dorothy Lawson states that it is not necessary for there to be a vote as to who are the family heads stating, "it was something we already knew; it's a combination of things that gives you that role." The affidavit of Peggy Thomas supports Dorothy Lawson as the head of "our wider family group" and states that she was present at the meeting held on 14 June 1999, "at which the identity of the five family heads was noted, and the decision to authorise Dorothy Lawson and Phillip Lawson as the applicants for this Native Title claim was also noted". 18 She further states that "Roddy" Smith, Arthur Lawson and Cora Lawson were present and all concurred in the authorisation. This claim is supported by a handwritten statement annexed to the affidavit. The opening words of the statement, dated 27 June 1999, are: "Permission for Dorothy Lawson/Phillip Lawson to amend native title claims made on behalf of Barkandji (Paakantyi) and to deal with matters raised by such claims as per attached minutes of metting of 14 June 1999." 19 The statement then sets out details, not relevant here, of actions to be taken in conjunction with various native title matters. It is signed in the names of Roland Smith, Cora Lawson, Arthur Lawson, Ray Lawson, Dorothy Lawson, Peggy Thomas and another person whose signature is illegible. The affidavit does not address the issue of whether this authorisation has been withdrawn although one can infer from the evidence of Ms Thomas that she supports the continuance of the Lawsons as the applicants in this proceeding. 20 In an affidavit dated 14 May 2001, Irene Mitchell contradicts her earlier affidavit and states that the meeting held between herself and the applicants on 19 February 2001 was "not a meeting where all family heads were given their right to speak and therefore cannot be considered as a valid meeting of the heads of the family group". She states that she continues to authorise Dorothy Lawson and Phillip Lawson in the relation to this proceeding. consideration 21 The Applicants seek orders under s 66B of the Act replacing the Lawsons as applicants. Section 66B provides that the Court may make the relevant order if it is satisfied that the grounds in s 66B(1) are established. Those grounds are set out as follows: 66B Replacing the applicant Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application …may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. 22 It is not in dispute that the Applicants are members of the Claimant Group. There is dispute, however, about the other two requirements that the Applicants need to prove, being that the Lawsons are no longer authorised by the Claimant Group and that the Applicants have been authorised in their stead. 23 As with the initial application, the questions of authorisation relevant here are governed by s 251B. In accordance with s 251B(a), the authorisation statement relied on a description of the Claimant Group's traditional process of decision-making. The Delegate accepted this description and, in my opinion the material presented to him justified his decision. Neither that description, nor the Delegate's acceptance of it, has been challenged. In Strickland v Native Title Registrar (1999) 168 ALR 242 (upheld on appeal to the Full Court; Western Australia v Strickland (2000) 99 FCR 33) French J commented at [57]: "The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications." Like his Honour, I am satisfied that the requirements of the Act have been met in this case. . 24 In this respect the circumstances under consideration here are quite different from those considered by Wilcox J in Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637. In that case, which also concerned an application under s 66B, none of the three claimant applications under consideration, each brought by Ms Kim Edna Eileen Moran, had been accepted for registration. Wilcox J held that the authorisation claimed by Ms Moran did not fall within either limb of s 251B and accordingly Ms Moran had failed to show that she fell within s 61(1) and was entitled to make a claimant application. 25 According to the authorisation statement, it is the headpersons who speak for the Claimant Group. Although the description of the decision-making process in the authorisation statement was not challenged, the confirmation of the five headpersons named in [10] above at the 14 June 1999 meeting was challenged in the affidavit evidence of Roland ("Roddy") Smith, Ray Lawson, Arthur Lawson and Cora Lawson. The view expressed by all four Elders seems to be that in 1999 there were discussions on the question of native title claims and the appropriate representatives for the Claimant Group but that no formal decision was made. If that is so then is surprising that there is no evidence that these four Elders challenged the authorisation of the Lawsons or the identification of headpersons at the time the amended application was filed and accepted for registration. On cross-examination, Ray Lawson (the only one of these four Elders to be cross-examined) admitted that he had approved the application at about the time the registration test was applied. Moreover the handwritten statement dated 27 June 1999 (see par [19] above) is inconsistent with the present evidence and there has been no claim that the signatures are not genuine. 26 On the evidence before me, I do not accept that the Lawsons were not authorised in accordance with the customary law of the Claimant Group. Similarly I am not convinced by the challenge to the identity of the headpersons. In rejecting this evidence, I do not impute any duplicity of the four Elders referred to above. However the passage of time since the events in question, the evidence of other persons present at the 14 June 1999 meeting and the fact that the Applicants themselves do not challenge the initial authorisation of the Lawsons, leads me to prefer the contemporaneous evidence. 27 Ms Phillips, counsel for the applicants, submitted that irrespective of the effectiveness of the initial authorisation, the evidence put forward on behalf of the Applicants unequivocally demonstrates that the Lawsons have lost their authority to pursue this native title claim. She submitted that because very senior Elders of the Claimant Group now oppose the Lawsons, they are no longer authorised by the Claimant Group within the meaning of s 66B(1)(a)(i). I am not persuaded by this argument. In my opinion, it confuses loss of "confidence" with loss of "authority". It is clear from the evidence before me that the Lawsons do not have confidence of some of the very important members of the Claimant Group. However, the unchallenged decision-making processes of the Barkandji require that a decision to strip the Lawsons of their authority be made by the headpersons. 28 As I accept the authorisation statement's description of the Claimant Group's traditional decision-making processes and the identification of the five headpersons, the views of the headpersons as to the continuing authority of the Lawsons are critical. Two headpersons, namely the Applicants, support the removal of the Lawsons. Two headpersons, namely Dorothy Lawson and Irene Mitchell, oppose it. There is no evidence as to the views of the fifth headperson, Charlotte Jones and no explanation as to why this is so. There is also no satisfactory evidence as to the consequences of a dispute between headpersons. Dorothy Lawson's evidence is to the effect that unanimity is required. She says in her affidavit: "It's because we have particular rights to speak for different parts of our country that we all had to agree on authorisation; you need to get consensus; say for instance it was four against one, it still wouldn't apply; the five would have to come together." 29 Irene Mitchell, in the later of her two affidavits, rejects the validity of the decision made on 19 February 2001 because not all headpersons had a right to speak. Whether Ms Mitchell's view is that all headpersons must agree or whether she means that it is sufficient for all to have an opportunity to put their view is not clear. In any event, it would seem that on either test she would reject the decision to replace the Lawsons made at that meeting. 30 The fact that significant senior Elders oppose the Lawsons continuing to have the carriage of this proceeding is of great concern. Ms Phillips stated that the Applicants believe that they are authorised to seek to replace Lawsons by the same process as the Lawsons themselves rely on to support their claim. However, as the above analysis shows, this belief is not justified. Irrespective of whether the decision making processes of the Claimant Group require unanimity of views between the headpersons or whether a simple majority would suffice, the requirements in s 66B(1) are not met. 31 Ms Phillips was eloquent about the problems with the claimant application and how there is a need to amend the claim so that it properly reflects the interests and responsibilities of the particular families. This may well be correct, however, the case cannot be made by submissions from the bar table. There is no evidence to show what has caused the Lawsons to lose the confidence of those who oppose them other than comments in the affidavits of Cora Lawson, Arthur Lawson and Roland Smith that they have not been kept informed of the progress of the claim. In addition there are vague expressions of concern by Roland Smith about the Lawsons reaching agreements with mining companies. 32 Section 66B requires that the Applicants show that the Lawsons are no longer authorised. On my reading of the authorisation statement, that would require evidence that the headpersons, or at least a majority of them, are of that opinion. If the Applicant wishes to make the case that the views of Elders who are not headpersons are to be taken into account, the Court needs some evidence to show why this is so. There was no attempt to do this. There is no evidence before the Court concerning the total number of Elders in the five family groups or what proportion of Elders or senior Elders share the views of the Applicants and the other four Elders who have supported them. Therefore on the evidence, neither the requirement in s 66B(1)(a)(i) nor the requirement in s 66B(1)(b) has been met. 33 For these reasons I must dismiss the motion with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 13 July 2001 Counsel for the Applicant on the motion: Ms S Phillips Solicitor for the Applicant on the motion: Martin Irwin Richards Counsel for the First Respondent: Mr L McDermott Solicitor for the First Respondent: Blackshield & Co Solicitor for the Second Respondent: Crown Solicitor for New South Wales Counsel for the Third Respondent: Mr P Kilduff Solicitor for the Third Respondent New South Wales Aboriginal Land Council Solicitor for the Fourth Respondent: Andrew Chalk Associates Date of Hearing: 17 May 2001 Date of Judgment: 13 July 2001