FEDERAL COURT OF AUSTRALIA Simms v Minister for Land & Water Conservation [2002] FCA 15 NATIVE TITLE –application by New South Wales Native Title Services Ltd to be joined as a party – whether it had interests which may be affected by a determination in the proceeding – application for striking out of application on ground that applicants not authorised to make it Native Title Act 1993 (Cth) s 84(5), s 84C Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 followed Gale v New South Wales Minister for Land and Water Conservation [2002] FCA 972 followed Jack Woodridge on behalf of the Gomilaroi People v Minister for Land and Water Conservation for the State of New South Wales followed Munn v State of Queensland [2002] FCA 78 cited NORMA SIMMS & ORS ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE v THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES N 6006 OF 2002 LINDGREN J 21 AUGUST 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 6006 OF 2002 BETWEEN: NORMA SIMMS, GWENDOLINE BROWN & REUBEN BROWN ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE APPLICANTS AND: THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 21 AUGUST 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. New South Wales Native Title Services Limited be joined as second respondent. 2. The application be struck out pursuant to s 84C of the Native Title Act 1993 (Cth). 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 N 6006 OF 2002 BETWEEN: NORMA SIMMS, GWENDOLINE BROWN & REUBEN BROWN ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE APPLICANTS AND: THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES RESPONDENT JUDGE: LINDGREN J DATE: 21 AUGUST 2002 PLACE: SYDNEY REASONS FOR JUDGMENT General 1 By a notice of motion filed on 29 July 2002 New South Wales Native Title Services Limited ("NTS") moves for the following orders: "1. That New South Wales Native Title Services Limited (NSW NTS) be joined as a party to the proceedings; 2. That pursuant to section 84C of the Native Title Act 1993 (Cth) the proceedings be struck out; 3. Such other orders as the Court considers appropriate." 2 The proceeding was commenced on 21 May 2002. The motion of NTS is supported by an affidavit of Barbara Jill Guthrie, solicitor, sworn 29 July 2002. Ms Guthrie is employed by NTS as a Senior Legal Officer and has the principal carriage of the matter on behalf of NTS. 3 In order to appreciate the background to the present proceeding and NTS's motion, it is necessary to refer to an earlier proceeding. That earlier proceeding is number NG 6006 of 1998 in which Ernest William Duren was the named applicant and in which there were several respondents. That application was for a determination of native title and was itself a "continuation" of an application by Mr Duren to the National Native Title Tribunal ("the Tribunal") filed on 6 September 1995 (NC95/9). By that application Mr Duren applied on behalf of "The Elouera Aboriginal People". Mr Duren's address for service was stated in that application as: "Korewal = La Perouse. Elouera = Illawarra. Jerrungarugh=Shoalhaven. Tribal Elders : Aboriginal Corporation". 4 That Corporation has also been referred to as the "KEJ Tribal Elders Aboriginal Corporation". I will call it simply "KEJ". Mr Duren's representative in that proceeding was also shown as KEJ and the contact person at that organisation was shown as "Reuben Brown", the third named applicant in the present proceeding. 5 When Mr Duren's proceeding was before the Tribunal, Mr Brown played a key role in relation to it. For example, on 2 January 1995 he wrote a letter referring to the fact that as contact person for KEJ, he had lodged the application for determination of native title with the Tribunal on behalf of Mr Duren, and advising that he wished to amend the area of land and water covered by the application in accordance with a map attached to his letter. It seems clear that, at that time and for a long time afterwards Mr Brown saw his interests as allied with those of Mr Duren. 6 Pursuant to s 74 of the Act, as it stood prior to 30 September 1998, French J, the then President of the Tribunal, ordered on 26 August 1998 that the Native Title Registrar lodge the application with this Court. At the first directions hearing in the Court in October 1998, lengthy and detailed directions were made to progress the matter. There was, however, no progress, or hardly any, from that time down to a time recently when the proceeding was dismissed. 7 In the earlier part of 2001 there was apparently a falling out between Mr Brown and Mr Duren. On 29 August 2001, Mr Brown filed a notice of motion to have Mr Duren removed as applicant and to have himself substituted. On 5 October 2001 Mr Brown's wife, Gwendoline Laura Brown, the second named applicant in this proceeding, filed a notice of motion seeking to have Mr Duren removed as applicant and herself made applicant in his place. On 2 November 2001, Mr Brown's motion was dismissed by consent. On 7 December 2001 I gave reasons for judgment for dismissing Mrs Brown's motion. 8 Lack of progress and a large number of directions hearings were features of the earlier proceeding. The respondents were reluctant to seek dismissal of the proceeding hoping, they told me, that the various parties or factions involved might resolve their differences. That was the position taken by Ms Phillips of counsel representing the fourth respondent to the earlier proceeding, The New South Wales Aboriginal Land Council. Accordingly, rather than seek a dismissal, in December 2001 Ms Phillips suggested that there be a yet further lengthy adjournment in the hope that a meeting of the indigenous people involved, to be convened with the assistance of her client, would come to a resolution. With some misgiving in view of the previous history of the matter, I stood over the proceeding to 7 May 2002. The dissension had not been resolved and on that date I made Orders 1 to 4 as follows: "1. Order that the applicant on or before 20 May 2002 provide to the Court and all parties a list of all persons who are members of the Native Title Claim Group, including in respect of each person: (a) his or her name (including, where applicable, Aboriginal and European names and the name by which he or she likes to be known); (b) his or her place of residence; (c) his or her place of birth; (d) the basis upon which the applicants say that the person is a member of the applicant Native Title Claim Group. 2. Direct the applicant, on or before 20 May 2002, to file and serve affidavit evidence establishing that he is authorised by the members of the Native Title Claim Group to make the present application on their behalf. 3. Order that if Orders 1 and 2 are not complied with, the proceeding shall stand dismissed immediately following the non-compliance. 4. Stand over the proceeding to 27 May 2002 at 9.30 am on the basis that the direction hearing will be vacated if Order 3 has taken effect." 9 It will be noted that Order 3 was a self-executing order of dismissal. 10 Apparently on 20 May 2002, the last day for compliance with Orders 1 and 2, Mr Brown attended at the Registry and unsuccessfully attempted to file in the earlier proceeding an amended application by the present three applicants in this proceeding. The attempt was misconceived because they were not the applicants in the earlier proceeding. In any event, the filing of an amended application on that day, even by Mr Duren, would not have been a compliance with Orders 1 and 2 of 7 May 2002. 11 The next day Mr Brown filed the application by which the present proceeding was commenced (he used the form of amended application he had attempted to file the preceding day, with the word "amended" deleted). I understand it is not in dispute that the new application is in respect of the same, or substantially the same, land and waters as was Mr Duren's application in the earlier proceeding. 12 In the application by which this proceeding was commenced, the applicants rely for their authority to commence it on a meeting held on 17 February 2002. But the notice convening that meeting and the minutes of what happened at it clearly show that it related to the earlier proceeding: it was resolved that Mr Duren be removed as applicant on the Elouera Native Title Claim N 6006 of 1998, and that he be replaced by the present applicants. Joinder of NTS as a party 13 There are two issues to be resolved on the present motion the first is whether NTS should be joined as a party. NTS relies upon subs 84(5) of the Act which provides as follows: "The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings." 14 For a reason which will appear later, I need not discuss in detail the network of legislative provisions but I will refer to them briefly. Section 84 of the Act provides, relevantly, that an applicant is a party to a proceeding in relation to an application to which s 61 of the Act applies. Section 61 lists various classes of application including a native title determination application of which the present application is one. Subsection 84(3) provides that certain other persons there referred to are also parties to a proceeding. That subsection is as follows: "(3) Another person is a party to the proceedings if: (a) any of the following applies: (i) the person is covered by paragraph 66(3)(a); (ii) the person claims to hold native title in relation to land or waters in the area covered by the application; (iii) the person's interests may be affected by a determination in the proceedings; and (b) the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding." 15 The persons "covered" by par 66(3)(a) are persons to whom the Native Title Registrar is required by subs 66(3) of the Act to give notice containing details of an application under s 63 (that section refers to an application under s 61). I need note only the following two classes of persons or bodies referred to in par 66(3)(a): "(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application;" "(vii) if the Registrar considers it appropriate in relation to the person – any person whose interests may be affected by a determination in relation to the application; ..." 16 Accordingly, the relevant representative body under Pt 11 of the Act becomes a party by the operation of s 84(3) provided that body so requests within the period referred to in par 84(3)(b). But NTS is not a representative body and, in any event, notice has not been given to it by the Registrar in respect of this recently commenced proceeding. Accordingly, NTS accepts that it can be made a party only pursuant to subs 84(5), that is, if it satisfies the Court that its "interests may be affected by a determination in the proceedings". 17 The New South Wales Aboriginal Land Council applied for withdrawal of its recognition as a native title representative body pursuant to s 203AH(1)(b) of the Act and on 6 December 2001 the Minister for Immigration and Multicultural and Indigenous Affairs withdrew that recognition. Section 203FE of the Act provides that the Aboriginal and Torres Strait Islander Commission ("ATSIC") may make a grant of money to a body for the purpose of enabling it to perform, in respect of a specified area for which there is no representative body: (a) all the functions of a representative body; or (b) specified functions of a representative body, either generally or in relation to one or more specified matters. 18 On 8 January 2002, pursuant to an application by NTS received by ATSIC on 14 December 2001, ATSIC acted under this provision and granted funds to NTS to assist it to undertake the approved activities referred to in the letter. One of those activities was to perform in respect of the area of the State of New South Wales and the Australian Capital Territory all the functions of a representative body as identified in s 203B of the Act. 19 Accordingly, NTS is not itself a representative body but has been enabled by a grant by ATSIC pursuant to statutory provision to perform all the functions of a representative body. 20 It would be possible for me to spend some time now identifying what those functions are by reference to Division 3 of Pt 11 of the Act, but the question whether NTS has "interests which may be affected by a determination" in a proceeding such as the present one by reason of its being authorised and funded to perform the functions of a representative body, has been the subject of decision in three cases. Those cases are Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365, a decision of Tamberlin J delivered on 9 April 2002; Gale v New South Wales Minister for Land and Water Conservation [2002] FCA 972, a decision of Madgwick J delivered on 12 July 2002 and Jack Woodridge on behalf of the Gomilaroi People v Minister for Land and Water Conservation for the State of New South Wales, an ex tempore decision of Hill J delivered on 12 August 2002 in proceeding NG 6092 of 1998 (ex tempore reasons delivered, not yet published). 21 In all three proceedings, Judges of the Court have held that NTS has interests which may be affected by determination in a proceeding such as the present one, that is, an application for a native title determination. I have read the reasons for decision in the first two cases. In the third, the Judgment was a recent ex tempore one and the written reasons are yet to be finalised, but I understand that the reasoning of Hill J in that case was generally similar to that of Tamberlin J and Madgwick J in the other two cases. 22 It is well established that a Judge should not decide inconsistently with an earlier Judge unless clearly convinced that the earlier decision is wrong. While I accept that an argument can be put against the position that has been taken by the three Judges mentioned (see, for example, the doubts expressed by Emmett J in Munn v State of Queensland [2002] FCA 78, in relation, not to NTS, but the Queensland South Representative Body Aboriginal Corporation), I am not clearly of the view that Tamberlin J, Madgwick J and Hill J were in error. 23 Their Honours' decisions are directly applicable, in my view, to the circumstances of the present case, relating, as they do, to NTS. They are not distinguishable on the ground that in those three cases the New South Wales Aboriginal Land Council was already a party to the proceeding and the issue was whether that Council should be replaced by NTS: NTS either did or did not have "interests which may be affected by a determination in the proceedings" and all three Judges held that it did. 24 I would follow their Honours and make an order under subs 84(5) that NTS be joined as second respondent. Striking out 25 Mr Oshlack, who has appeared with leave for the applicants in the proceeding, asks that I do not proceed now to deal with the second part of the motion. I reject his application. His reason is that his client may wish to appeal the decision I have just given joining NTS. If I strike out his clients' application, they will be entitled to apply for leave to appeal against that order of dismissal as well. It is better that both issues run together. 26 When the matter was before me on the last occasion argument was put in relation to the dismissal aspect of the motion as well as the joinder aspect. There was evidence that there would be a meeting on 19 August 2002 convened by the applicants for the purpose of putting beyond doubt that they were authorised to make the present application. I said on that occasion that if evidence was to be put on in relation to that meeting, Mr Oshlack would need to apply for leave to adduce it today. I also indicated that I would wish to have submissions on the question of ratification of a proceeding commenced without authority. There is no evidence as to the calling of the meeting or what transpired at it. There have been no submissions by either party today on the question of ratification. In written submissions, however, Mr Oshlack asserts simply that a meeting was held on 19 August 2002 and that a motion was passed to put beyond doubt that the three present applicants are authorised to make the present application. This is inadequate. It is not evidence at all and is far from addressing all the matters that would have to be addressed. 27 Section 84C of the Act provides that if an application does not comply with s 61, a party to the proceeding may apply to the Court to strike out the application. The main ground on which NTS relies is non-compliance with the requirement of s 61 that the persons who make an application must be "authorised by all the persons … who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed". The notion of the authorising of the making of an application is addressed in s 251B of the Act which I need not set out. The application which commenced the present proceeding states on the question of authorisation as follows: "The Elouera People have authorised this application according to Elouera tradition and custom and confirmed their processes at a large meeting at Bass Point, south of Wollongong on 17 February 2002." 28 The affidavit had annexed to it affidavits of the three applicants in a standard form purportedly addressing the matters referred to in subs 62(1) of the Act. The evidence of authorisation consists of an affidavit of Mr Brown sworn on 19 May 2002 and the exhibits to that affidavit. As noted at [12] above, it is quite clear that the evidence annexed to the affidavit relates to the earlier proceeding and to the removal of Mr Duren and the replacement of him in that proceeding by the present three applicants. 29 In addition, there is evidence of a meeting held on 18 May 2002, apparently convened by or with the assistance of NTS, in which (I summarise) it was decided not to attempt to comply with my orders in the earlier proceeding but to allow the self executing order for dismissal to take its effect, and to request NTS to convene a meeting of the Elders Council (the traditional owners' consultative group) in September 2002 at the Nowra Cultural Centre. 30 Some forty-four individuals were present at the meeting, including Mr Brown. According to the minutes of the meeting, the resolution was passed unanimously. Accordingly, on the evidence a firm position was taken on 18 May 2002 that the parties would "allow the dust to settle" and that the matter would be considered further next September. Notwithstanding the decisions taken at that meeting on 18 May 2002 and Mr Brown's apparent acquiescence in them, as I indicated earlier Mr Brown attempted to file an amended application in the earlier proceeding on 20 May 2002 and in fact filed that document to commence this present proceeding on 21 May 2002. 31 On the evidence before me it seems clear that the present three applicants were not authorised by the native title claim group to commence this fresh proceeding. 32 I will strike out the application. This will not prevent the commencement in the future of a duly authorised proceeding. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 26 August 2002 Representative of the Applicants with leave: Mr A Oshlack Solicitor for the Respondent: Ms J Moss of the State Crown Solicitor's Office Counsel for New South Wales Native Title Services Limited: Ms S B Phillips Solicitor for New South Wales Native Title Services Limited: Ms B Guthrie of New South Wales Native Title Services Limited Date of Hearing: 21 August 2002 Date of Judgment: 21 August 2002