FEDERAL COURT OF AUSTRALIA Martin (deceased) v State of Western Australia (No 2) [2009] FCA 635 NATIVE TITLE – application to replace deceased current applicant – whether new applicants are authorised by claim group under s 66B(1)(b) Native Title Act 1993 (Cth) – application to amend claimant application – whether claim by a subgroup of a larger community – whether claim group defined with sufficient particularity – applications allowed. Native Title Act 1993 (Cth) s 61(1), s 61(4), s 66B, s 66B(1), s 66B(1)(b), s 190C(3), s 251B Bolton v Western Australia [2004] FCA 760 Daniel v Western Australia (2002) 194 ALR 278 Dieri People v State of South Australia (2003) 127 FCR 364 Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 Landers v State of South Australia (2003) 128 FCR 495 Martin v State of Western Australia [2008] FCA 1677 Ward v Northern Territory [2002] FCA 171 Ward v State of Western Australia (1998) 159 ALR 483 JOAN MARGARET MARTIN (DECEASED) v STATE OF WESTERN AUSTRALIA & ORS WAD 6193 of 1998 BARKER J 12 JUNE 2009 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6193 of 1998 BETWEEN: JOAN MARGARET MARTIN (DECEASED) Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondent JUDGE: BARKER J DATE OF ORDER: 12 JUNE 2009 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Irwin Tasman Lewis, Darryl Noel Woods, Errol Leonard Martin, Julie Lewis, Bill Lewis, Gregory Denis Martin and Gloria May Martin replace the current applicant in these proceedings. 2. The claimant application be amended in terms of the amendments proposed to Sch A, Sch E, Sch F, Sch G, Sch M, Sch O and Sch R as set out in the notice of motion application to amend the claimant application filed 1 May 2009. 3. The notice of motion filed 1 May 2009 proposing these amendments stand as the amendments to the claimant application and further service is dispensed with. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6193 of 1998 BETWEEN: JOAN MARGARET MARTIN (DECEASED) Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondent JUDGE: BARKER J DATE: 12 JUNE 2009 PLACE: PERTH REASONS FOR JUDGMENT ISSUES 1 Two issues arise on notices of motion currently before the Court: • Whether an order should be made to replace the deceased current applicant in these native title proceedings. • If so, whether the proposed amendment to the claimant application proposed by the new applicants should be allowed. background 2 The original application for a native title determination was filed by the current applicant in 1998. 3 The claimant application was amended by an amended native title determination claimant application filed 24 December 1999. 4 The current applicant stated in Sch A to the amended claimant application that the claim was brought on behalf of a number of named persons and their biological descendants (the claim group). Schedule A provides as follows: The claim is brought on behalf of Norman Charles Harris, Anne Caroline Harman (nee Harris), Myrtle Daphne Mullaley (nee Harris), Kevin Phillips, Barry Phillips, William Lewis, Irwin Lewis, Joan Margaret Martin (nee Lewis), Shirley Elizabeth Lowden, Gloria May Lewis, Richard Douglas Lewis, Gary Norman Lewis, Eunice Atkins, Gordon Phillips, Aggie Phillips, Lorraine Phillips, Shirley Woods (Phillips), Darryl Woods (Phillips), Frank Woods (Phillips), Helen (Ellen) Woods (Phillips), David Woods (Phillips), Reginald (Reggie) Woods (Phillips), Graham Woods (Phillips), Jennifer (Jenny) Woods (Phillips), and James (Jimmy) Woods (Phillips) and their biological descendants. 5 On 6 October 2008, the current applicant passed away. 6 By notice of motion filed 1 May 2009, seven of the persons in the claim group applied for orders that the current applicant be replaced by them. The seven persons are: Irwin Tasman Lewis Darryl Noel Woods Errol Leonard Martin Julie Lewis Bill Lewis Gregory Denis Martin Gloria May Martin (the proposed applicants). 7 By further notice of motion filed 1 May 2009, the proposed applicants – on the basis that their application to replace the current applicant is allowed – also seek orders that the claimant application be amended in various respects in respect of Sch A, Sch E, Sch F, Sch G, Sch M, Sch O and Sch R. 8 In particular, the proposed amendment of Sch A is in the following terms: Add the following words: provided that any person who is within the description contained in Section 190C(3) of the Native Title Act 1993 (As Amended) whether specifically named in this Schedule or a descendant of a person named in this Schedule is excluded from those persons on whose behalf the claim is brought. attitude of other parties to the two applications 9 At the hearing of these notices of motion, the notices of motion were opposed on behalf of the Badimia native title claimants and the Yamatji Marlpa Aboriginal Corporation, the fourth respondents in the proceedings. 10 The fourth respondents raise the following ground of objection to the application to replace the current applicant: • The application is not appropriately authorised by the claimant group and does not comply with the requirements of s 66B(1)(b) of the Native Title Act 1993 (Cth). 11 As to the proposed amendments to the claimant application, the fourth respondents raise two further grounds of objection: • The claim would be one made by a subgroup of a larger community, which claim is not open as it offends s 61(1) of the Native Title Act 1993. • The identification of the claimant group in Sch A fails to identify with appropriate certainty the members of the claimant group. 12 It is understood by all the parties that if the application to replace the current applicant fails then so must the application made on behalf of the proposed applicants to amend the claimant application. 13 The State of Western Australia, the first respondent, supports the first ground of complaint made by the fourth respondents in respect of the authorisation point, but does not press the grounds of complaint made by the fourth respondents in respect of the application to amend the claimant application, in the event the application to replace the current applicant is successful. 14 The Commonwealth, the second respondent, also appeared on the hearing of these applications. The Commonwealth did not oppose the applications, but expressed concern about the extent to which the applications may be construed to constitute a claim by a "subgroup" in respect of the communal title held by a larger group. The authorisation point 15 Section 66B of the Native Title Act 1993 deals with replacing the applicant. Section 66B(1) permits one or more members of a native title claim group in relation to a claimant application to apply to the Federal Court for an order that the member, or members jointly, replace the current applicant on a number of grounds including, relevantly, that the person has died. 16 In light of the death of the current claimant, there is no dispute there is a relevant ground upon which the Court may make an order replacing the current applicant. 17 However, it is also necessary under s 66B(1)(b) that the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it; just as the initial applicant must be authorised to make a claimant application under s 61(4). 18 Section 251B explains what it means for a person or persons to be authorised to deal with matters arising in relation to a native title determination application, in the following terms: 251B Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) 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; or (b) where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision‑making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 19 As to the process undertaken in this case by the proposed applicants to obtain the authorisation of the claim group to replace the current applicant, the affidavits of Errol Leonard Martin sworn 1 May 2009, Irwin Tasman Lewis sworn 1 May 2009, Julie Lewis sworn 1 May 2009, Gloria Lewis sworn 5 May 2009, Darryl Woods sworn 7 May 2009, Gregory Denis Martin sworn 6 May 2009 and Bill Lewis sworn 8 May 2009 explain the process. The following steps were taken. 20 On 18 November 2008 a meeting occurred of about 6 "senior Widi men and women" including Errol Leonard Martin, Gloria Lewis, Irwin Tasman Lewis, Darryl Woods and Gregory Denis Martin. 21 It was agreed at this meeting on 18 November 2008 that these members would attempt to convene a meeting of the claim group described in the claimant application. 22 Deanne Lewis, daughter of Shirley Lewis – one of the members of the claim group described in the claimant application – provided Errol Leonard Martin with a list of 79 names and addresses of persons she believed from inquiries she had made to be most of the persons in the claim group and whose addresses she had been able to obtain. 23 Errol Leonard Martin was and is familiar "with the affairs of the people generally described as the Widi Mob" and considered the list prepared by Deanne Lewis to be substantially accurate, except that it did not include: Anne Coroline Harman Myrtle Daphne Mullaley Kevin Phillips Barry Phillips Gary Norman Lewis David Woods 24 The list provided to Errol Leonard Martin contained the names and addresses of a number of members of the claim group, namely: Irwin Tasman Lewis Gloria May Lewis Richard Douglas Lewis Shirley Woods Darryl Woods Frank Woods Helen Woods Reginald Woods Graham Woods Jennifer Woods James Woods 25 Errol Leonard Martin noted that at that point a number of the named members of the claim group had passed away, being: Norman Charles Harris William Lewis Joan Margaret Lewis Shirley Elizabeth Lewis Eunice Atkins Gordon Phillips Aggie Phillips Lorraine Phillips 26 Errol Leonard Martin then distributed a notice to all persons named in the list at the addresses shown in the list and to others to whom he could hand the notice. 27 The notice was headed "WIDI NATIVE TITLE CLAIM – DIRECTOR SELECTION MEETING". It advised that a meeting would be held on Thursday 9 April 2009 at 2pm at the Barry Britton Reserve on Balga Avenue and Keemore Drive, Balga, the purpose of which was to vote for a "Director for the Widi Group for Native Title Claim". It also advised that "Should you be unable to attend the meeting in person, you are requested to send a representative who must hold a copy of this letter displaying your signature". 28 Errol Leonard Martin also telephoned the family of Anne Coroline Harman and asked them to inform her of the meeting but was told she was too infirm to attend. 29 Errol Leonard Martin also sent a notice to the children of Myrtle Daphne Mullaley and was informed she was too infirm to attend. 30 Errol Leonard Martin also sent a copy of the notice to Kevin and Barry Phillips care of the post office in the towns in which they live, namely Roebourne and Carnarvon. 31 He also sent a notice to David Woods at his address. 32 Errol Leonard Martin also telephoned as many people as he could in case they had changed address. 33 As of 1 May 2009, when Mr Martin swore his affidavit about these actions, only one of the notices posted had been returned to him. That was the one addressed to Richard Douglas Lewis. However, Richard Douglas Lewis telephoned Mr Martin before the meeting and told him he had heard it was on, but he was away in the desert for a funeral and could not attend. 34 The meeting was held at the clubrooms located at Barry Britton Reserve in Balga and commenced at about 3pm on Thursday 9 April 2009. 35 The meeting was addressed by Mr Paul Marsh, a legal practitioner providing assistance to the claim group and it was agreed without dissent that he should chair the meeting. 36 Mr Marsh explained the need for those taking part in the meeting to be a person named in the description of the claim group or to be descended from one of them. Each person at the meeting was asked to complete a form which recorded their name and address and the name of the person they were descended from (if applicable). The form had a list of the persons named in the claim group description on the back. 37 Four persons present said they were not a named person and were not descended from a named person. They did not take any part in the meeting thereafter. 38 Five of the persons named in the claim group attended the meeting, namely: Irwin Tasman Lewis Darryl Woods Graham Woods Jennifer Woods Helen Faye Woods 39 Another 12 persons who took part in the meeting through claimed descents were considered by Errol Leonard Martin to be true descendents of named claim group members. 40 Mr Marsh then told the meeting about the procedure to replace the deceased applicant and explained the powers that a person or group of persons appointed to be an applicant would have. 41 All of the persons were asked to mark on the forms if they understood or did not understand the authority that the substituted applicants in the claimant application would have. All 21 forms returned recorded that the participants in the meeting understood the powers or the authority the substituted applicants would have. 42 Mr Marsh then explained that if there was a relevant traditional law that must be followed in making decisions of the kind being made at the meeting, then that method must be followed. Persons who believed that there was such a law were asked to indicate that they held that belief. No person indicated that they held such a belief. 43 The persons taking part in the meeting were then asked to record their vote on the form. No person recorded an opinion that there was a traditional law or procedure. 44 Errol Leonard Martin, who is a son of the current applicant, also does not know of any traditional procedure that must be followed in making decisions of this kind. 45 The meeting was then asked whether or not it was agreed that taking a vote at the meeting and making a decision by majority vote was an agreed method of making the necessary decisions. There was no dissent from that proposal. 46 The people taking part in the meeting were asked to record their vote on the form. There was no dissenting vote recorded. 47 The meeting then considered the question of the number of persons who should comprise the applicant and it was agreed that five persons should be appointed to comprise the applicants. 48 Those taking part in the meeting were asked to record their vote on the form and they all recorded a vote for five persons to be appointed. 49 The forms were then collected. 50 Nominations were then called for at the meeting and seven nominations were received, but subject to those who were then not present agreeing to the nominations. 51 The persons nominated were Irwin Lewis, Darryl Lewis, Errol Lewis, Julie Lewis, Bill Lewis, Gregory Lewis and Gloria Lewis. Even though some of these persons are described as having the surname "Lewis", it is clear enough from the evidence that they are the same persons described above as proposed applicants. 52 It was then moved at the meeting by Irwin Lewis, seconded by Julie Lewis that the number of persons comprising the proposed applicants should be increased from five to seven. That motion was put and adopted without dissent. 53 Mr Marsh declared the persons nominated duly elected if they accepted their nomination and that they were authorised by the meeting to take the necessary steps to become the applicants in the claimant application. 54 The meeting, which had opened at about 3pm, closed at about 3.45pm. 55 In the light of the resolutions and decisions taken at this meeting, the application to replace the current applicant with the proposed applicants was made. 56 There is no doubt that the conditions imposed by s 66B must be satisfied before the Court can make an order replacing an applicant: Daniel v Western Australia (2002) 194 ALR 278 at [11]– [18]. 57 Where the authorisation requirements for the Act are not complied with, non-compliance is "fatal": Harrington‑Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1172]. 58 It is also accepted that even if the conditions for the exercise of the power under s 66B are satisfied there remains a discretion of the Court not to make the orders sought: Ward v Northern Territory [2002] FCA 171 at [16]. 59 Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights or interests comprising the particular native title claim: Harrington‑Smith 238 ALR 1 at [1172]. 60 In Bolton v Western Australia [2004] FCA 760 at [44], French J noted that the authorisation requirement is "no light requirement", and observed: If, as may well be the case, there is no relevant and mandatory traditional decision-making process applicable to the making and conduct of a native title determination application then a process 'agreed to and adopted by the persons in the native title claim group' will suffice as the source of authority for applicants representing members of the group. That is no light requirement. It means that the authorisation process must be able to be traced to a decision of the native title claim group who adopt that process. The conferring and withdrawal of authority for the purposes of a s 66B application must be shown as flowing from the relevant native title claim group. 61 In Bolton at [45], French J found that the evidence and processes adopted in that case were not adequate to meet the conditions necessary for an order under s 66B. His Honour found that the connection between those who attended the various meetings concerning authorisation and the respective native title claim groups, was not established either in respect of notification nor, more importantly, in respect of attendance. In that case, the native title claim groups were defined in each case by reference to apical ancestors and biological descendents of those persons and persons adopted by them. Advertisements and notices of meeting did not refer to the relevant native title claim groups except by use of generic title and the applications in question. The membership of the native title claim group by those who attended each meeting was not demonstrated. Rather it was reported as an asserted self‑identification. His Honour added that, even if it be accepted that each of the members who attended each of the meetings was a member of the relevant native title claim group, it was not established that they were in any sense representative of the various components of the native title claim group concerned. 62 Ultimately, French J noted at [46] "that it is not a basis for accepting a constructed 'decision‑making' process which cannot be demonstrated, to reflect in any legitimate sense, the informed consent of the members of the native title claim group or persons properly representing them as a substitute for the authorisation required by the Act". 63 In Landers v State of South Australia (2003) 128 FCR 495, one parcel of land was the subject of two native title determination applications. Both were apparently made on behalf of the same native title claim group – the Dieri People. The first was made by the Dieri Mitha People, a subgroup of the Dieri People. The second was made by Edward Landers and others. The Edward Landers group application was described as specifically excluding those people in the Dieri Mitha claim group. The Dieri Mitha group sought to have the Edward Landers application summarily dismissed on the grounds that it was not authorised by the Dieri People in accordance with s 251B of the Act and s 61(4) of the Act. 64 Mansfield J held there was insufficient evidence to warrant summary dismissal on the ground that it was not authorised, but did consider that the application failed to comply with s 61(1) and s 61(4) of the Act. 65 At [32], Mansfield J explained the latter point by reference to s 61(4) of the Act in these terms: It is required either to name the persons making up the native title claim group or to describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. It adopts the latter of those alternatives. It does not however do so in a way which properly complies with s 61(4). That is because it does not describe the native title claim group, the Dieri People. It describes a smaller group of people namely the Dieri People but excluding those persons referred to in para 5 of Sch A to the application. They are the persons for whom the Dieri Mitha application is brought. According to the amended particulars of claim in the Dieri Mitha application, that application is brought on behalf of 87 named persons. The Edward Landers group acknowledged that they, or most of them, are part of the Dieri People. The smaller group is not the group of people who should exclusively enjoy the communal native title if it is granted. Yet that is the purport of the Edward Landers application. It seeks, and if it is successful will result in, a determination of native title on behalf of some only of the Dieri People. 66 At [33], Mansfield J further noted that: I have rejected the submission that the Edward Landers application should be summarily dismissed because it is clear that it was not authorised by the Dieri People under s 251B of the NT Act. But, in my view, it also follows from the need for such authorisation that s 61(4) requires the application to be on behalf of the people who have authorised it. It does not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group… By excluding from the authorising group, namely the Dieri People, the 87 persons named as the applicant group (or even merely the Dieri Mitha group) in the Dieri Mitha application, that is what the Edward Landers group has done. The smaller group, as expressed, is not the group of people who should exclusively enjoy the communal native title. 67 Mansfield J rejected submissions that the expression "native title claim group" should be seen as a group of persons defined by the application and may be a different and smaller group than the persons who hold or may be determined as holding the native title claimed. At [35] Mansfield J explained why he took this view: The significance of the requirement introduced by s 251B is clear … The proper identification of the native title claim group is the central or focal issue of a native title determination application. It is the native title claim group which provides the authorisation under s 251B, and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made. I do not consider the registration procedures … were intended to detract from that focus. 68 At [36], Mansfield J concluded: In this instance, it is the claim of the Edward Landers group that they were authorised by the Dieri People. But the application does not then identify the Dieri People as the persons on whose behalf the claim is made, but some only of the Dieri People. 69 In the present case, the fourth respondents object to the application to replace the current applicant on the basis there is a lack of authorisation for the making of such an order. They say the deficiency in the application to replace the applicant becomes clear when one examines both the application to replace the current applicant and the application to amend the claimant application. 70 The fourth respondents say the affidavit of Errol Leonard Martin sworn 1 May 2009 deposes that "it was agreed that we would attempt to convene a meeting of the Claim Group described in the Main Application" (emphasis added in the fourth respondents' submission). 71 The fourth respondents say that the application to amend the claimant application, however, seeks to change the claim group description so that, as noted above, any person who is within the description contained in s 190C(3) is excluded from those persons on whose behalf the application is brought. 72 The fourth respondents say that the application to amend the claimant application seeks to change the claim group description and this is supported by Mr Martin's statement in his affidavit that the amendments are "true". 73 The fourth respondents say this "must mean that the asserted correct description of the claim group is as in the proposed amendments, not as in the original main application relied on to convene the meetings". 74 They also question the terms of the notice of meeting and the indication that a person might participate through a duly appointed representative. 75 The fourth respondents, supported by the State of Western Australia in this regard, therefore claimed that the evidence before the Court shows that the smaller claim group than that described in the claimant application has authorised the application to replace the current applicant and that an informed authorisation has not been conveyed. 76 For my part, the principles underlying the submission of the fourth respondents, as supported by the State, are clear enough. For example, if the original claim group in the claimant application were described as groups "A plus B" and the evidence discloses that only the "A" group has authorised an application to replace the current applicant, then the requirements of s 66B(1)(b) are not met. Similarly, if group A makes a claim to vindicate the native title rights and interests held by groups A and B, without having the authority of both groups, then the requirements of s 66B(1)(b) are not met. This simply involves an application of the principles to which the above authorities relate. 77 In my view, however, the evidence before the Court does not support the submission made on behalf of the fourth respondents and supported by the State that this is such a case. 78 On the proper construction of the authorisation process undertaken, the claim group as originally described in the claimant application, in its unamended form, as lodged by the current claimant (now deceased) were identified with reasonable precision, reasonably notified and had the proper opportunity to meaningfully participate in the meeting to consider the motion to replace the current applicant. The manner in which the meeting was conducted, as set out above, shows that it was an orderly meeting and that the persons properly entitled to participate as members of the claim group did participate and that persons not entitled to participate did not participate. The fact that the notice made reference to "DIRECTOR SELECTION MEETING" and invited members to send a representative to vote if unable to attend, does not diminish the nature of the meeting in this case or the substance of the authority it conveyed. Those in attendance at the meeting had explained to them the importance and significance of the authorisation they were being asked to consider. Moreover the members of the claim group that participated in that meeting were properly advised concerning the requirements of s 251B and then determined that there was no traditional decision‑making process that applied in a case such as that before them. Accordingly, they reasonably resolved to adopt a majority voting position. In the event there was no dissent from any of the propositions put. 79 Moreover, as explained below, I do not consider the applicants claim the "Widi Mob" are a subgroup of some larger group whose native title right they seek to vindicate. 80 I am therefore quite satisfied that on a plain reading and proper understanding of the evidence before me, this is not a case where some group constituted differently from the claim group described in the original claimant application have authorised the making of the application to replace the deceased current applicant. Nor is it a case where some smaller group purports to vindicate the native title rights and interests of some larger group, of which they are a part, without the larger group's authority. Rather the claim group as described in the claimant application, focussed on the relevant issues, provided the relevant authorisation to the proposed applicants to pursue the native title rights and interests that they, and they alone claim. 81 In those circumstances I reject the submission of the fourth respondents, supported by the State, that the requirements of s 66B(1)(b) have not been complied with in this case. 82 I would therefore order that Irwin Tasman Lewis, Darryl Noel Woods, Errol Leonard Martin, Julie Lewis, Bill Lewis, Gregory Denis Martin and Gloria May Martin replace the current applicant in these proceedings. application to amend the claimant application 83 In light of the ruling on the authorisation point, the proposed applicants who now replace the current applicant are entitled to proceed with their application to amend the claimant application. 84 There is little doubt that the proposed amendments to the claimant application are designed to facilitate the registration of the claimant application under s 190C of the Act. As to the history of registration of the claimant application in this proceeding, see Martin v State of Western Australia [2008] FCA 1677. 85 The proposed amendments include that to Sch A, which has already been set out in detail above and discussed to some extent. 86 Amendments are also proposed in respect of Sch E. If amended as proposed, in relation to exclusive possession areas, the "Widi Mob" would claim, "the right to possess, occupy, use and enjoy the lands and waters covered by the application … as against the whole world". 87 In relation to nonexclusive possession areas, the "Widi Mob" would claim a range of limited rights and interests such as access, camping, hunting and cultural protection activities. 88 In relation to Sch F, the application as amended would identify the "Association of the Widi Mob with the Application Area". Amongst other things it would be stated that: The Widi Mob is defined as a traditional group by the laws and customs by which a person is recognized(sic) as Widi. Those laws and customs have been passed down from previous generations extending to before white settlement. 89 The amendments to Sch G would set out the circumstances by which the claim group currently engages in activities on the land the subject of the claim. 90 The amendments to Sch M would set out the extent to which "present members of the claim group have been told of their obligations and responsibilities in relation to the activities and their country… by persons recognized(sic) by Widi laws and customs as elders or as having special knowledge". It also sets out the range of more limited rights and interests claimed. 91 Amendment of Sch O would result in the existing words in Sch O being deleted and the following being substituted: The amended the(sic) description of the claim group (Schedule A) by which any person caught by Section 190C(3) is excluded from the claim group means that by definition of the claim group there can be no person within the group that falls within those to be described under this Schedule. 92 Schedule R would be amended to deal with the organisation question, by specifying the grounds on which the Registrar should consider that statement correct as set out in the affidavits filed in support of the application to replace the applicant and the application to amend the claimant application filed in support of these applications. 93 From the terms of the application to amend the claimant application, the fourth respondents submit that in effect the applicants, on behalf of the claim group are claiming as a subgroup in respect of or on behalf of a wider "Widi Mob" than themselves. 94 Thus, counsel for the fourth respondents submits, on the authority of Landers and Dieri People v State of South Australia (2003) 127 FCR 364 that the proposed amended application is defective. 95 Immediately following the delivery of the decision in Landers, Mansfield J delivered judgment in Dieri People. This case involved the reverse of Landers, in that the Edward Landers Dieri People applied to dismiss the Dieri Mitha application. Each group was a party to the other's application. In the event, the Court dismissed the Dieri Mitha application (as it had the Landers application). 96 At [55] of Dieri People, Mansfield J, following reference to authority that described the proper identification of the native title claim group as going to the heart of the native title determination application, stated: In my view, the provisions of the NT Act do not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group His Honour referred in that regard amongst other decisions to Ward v State of Western Australia (1998) 159 ALR 483 at 541. 97 His Honour then found at [56] that, in the matter before him, the evidence showed the native title claim group, that is the persons on whose behalf a grant of native title should be made if the native title determination application were successful, was the community of persons comprising the Dieri People. However, a smaller group of some Dieri People had made the application. His Honour observed that the smaller group was not the group who should exclusively enjoy the communal native title, yet that was the purport of the native title application. Accordingly, for that reason, Mansfield J considered the application of this lesser group of applicants should be dismissed. 98 In addition, Mansfield J also considered at [56] that the authorisation granted to the applicants for that lesser group was not the necessary authorisation prescribed by s 251B of the Act, in much the same way he had determined that issue in Landers. 99 In my view, the construction or interpretation placed by the fourth respondents on the proposed amendments of the claimant application are not correct. As I read the claimant application and the proposed amendments to it, as briefly described above, the reference to the "Widi Mob" is merely a reference to the claim group and not to any wider group. The expression "Widi Mob" is therefore simply a convenient way in which the claim group refers to itself and itself alone. The applicants do not purport to be a subgroup of some larger group, and the material currently before the Court does not suggest they are. 100 In those circumstances there is no question, as was the case in Dieri People on the material before the Court, that the proposed application is put forward on behalf of some other, larger group, who have not, as a larger group, authorised the making of the amended application. 101 In this regard, I note that neither the State nor the Commonwealth actively supports the submission of the fourth respondents. 102 As noted above, the Commonwealth simply expresses concern that a subgroup should not be entitled to agitate a native title determination application in the place of the whole group. However, as noted, on a plain reading of the proposed amended application and material before the Court, this is not such a case. 103 Finally, the fourth respondents complain that the proposed amended application lacks certainty such that other parties would not be at all certain who falls within the claim group as described in Sch A as amended. 104 In my view, there is no substance in this submission. 105 The claim group plainly would be all those individual persons described in Sch A (if they are still alive at material times) and/or their biological descendents with the proviso that: any person who is within the description contained in Section 190C(3) of the Native Title Act 1993 (As Amended) whether specifically named in this Schedule or a descendent of a person named in this Schedule is excluded from those persons on whose behalf the claim is brought. 106 The primary individuals who are said to be within the claim group (or in the case of deceased persons, those ancestors whose biological descendents are within the group) are clearly stated. The proviso does not identify by name particular individuals who may fall within Sch A but who are excluded by operation of the proviso. However, in my view, in this case this is not a material concern. 107 Section 190C(3), which has to do with the conditions about administrative procedure and other matters regarding registration of a native title determination application, provides: (3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if: (a) the previous application covered the whole or part of the area covered by the current application; and (b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and (c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A. 108 In the circumstances, the inclusion of the proviso to Sch A of this application is reasonably seen to be a provision that makes it clear that the applicants do not intend to include as a member of the claim group, any person who was a member of the native title claim group for any previous application if (a), (b), (c) of s 190C(3) apply. In that sense the proviso is a clarifying and incidental provision. 109 In circumstances such as these I do not consider that it is necessary for the applicants to undertake a task that the Registrar may be required later to perform for the purposes of registration, in order to definitively identify every person who is not included within the claim group. 110 What is of key importance in a case such as this, is that the claim group has been defined with sufficient particularity. This is not a case where the claim group is described by reference to the descendents of some long ago apical ancestor. Rather, it is a case where named living (or recently deceased) persons and their biological descendants constitute the claim group. The exception is in respect of any persons who may fall within the description of persons to whom s 190C of the Act applies. In my view, there is no uncertainty about the description of the claim group in the proposed amended claimant application. 111 I note that neither the State nor the Commonwealth supports the application of the fourth respondents in relation to this alleged deficiency. 112 I therefore reject the submissions of the fourth respondents that the proposed amendments to Sch A of the claimant application should not be permitted. 113 In these circumstances, the Court would order that the claimant application be amended in terms of the amendments proposed to Sch A, Sch E, Sch F, Sch G, Sch M, Sch O and Sch R as set out in the notice of motion application to amend the claimant application filed 1 May 2009. conclusion and orders 114 For the reasons given above, I would allow the applications to replace the named deceased applicant and amend the claimant application. 115 The Court would therefore order that: 1. Irwin Tasman Lewis, Darryl Noel Woods, Errol Leonard Martin, Julie Lewis, Bill Lewis, Gregory Denis Martin and Gloria May Martin replace the current applicant in these proceedings. 2. The claimant application be amended in terms of the amendments proposed to Sch A, Sch E, Sch F, Sch G, Sch M, Sch O and Sch R as set out in the notice of motion application to amend the claimant application filed 1 May 2009. 3. The notice of motion filed 1 May 2009 proposing these amendments stand as the amendments to the claimant application and further service is dispensed with. 116 Before pronouncing final orders, however, the Court will hear from counsel for the parties as to the appropriate terms and form of the proposed orders. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 12 June 2009 Counsel for the Applicant: Mr P Marsh Counsel for the First Respondent: Mr TA Creewel Solicitor for the First Respondent: State Solicitor's Office Counsel for the Second Respondent: Ms S Oliver Solicitor for the Second Respondent: Australian Government Solicitor Counsel for the Fourth Respondent: Mr PJ Vincent Solicitor for the Fourth Respondent: Yamatji Marlpa Aboriginal Corporation Date of Hearing: 8 June 2009 Date of Judgment: 12 June 2009