FEDERAL COURT OF AUSTRALIA Jurruru People v State of Western Australia [2012] FCA 2 Citation: Jurruru People v State of Western Australia [2012] FCA 2 Parties: JURRURU PEOPLE AND ORS v STATE OF WESTERN AUSTRALIA AND ORS File number: WAD 6007 of 2000 Judge: BARKER J Date of judgment: 16 January 2012 Catchwords: NATIVE TITLE – application to replace applicant in application for determination of native title – s 66B Native Title Act 1993 (Cth) – authorisation meeting – members of the claim group in attendance – sufficient notice of authorisation meeting – decision-making process agreed and adopted – consensus – attendance by those representative of the claim group Legislation: Native Title Act 1993 (Cth) s 61(1), s 66B, s 251B, s 253 Cases cited: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 Butchulla People v State of Queensland [2006] FCA 1063; (2006) 154 FCR 233 Lawson on behalf of the 'Pooncarie', Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 Noble v Murgha [2005] FCAFC 211 Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 Date of hearing: 19 December 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Applicant: Ms PI Muecke Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation Counsel for the First Respondent: Mr GJ Ranson Solicitor for the First Respondent: State Solicitors Office IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6007 of 2000 BETWEEN: JURRURU PEOPLE AND ORS Applicant AND: STATE OF WESTERN AUSTRALIA AND ORS Respondent JUDGE: BARKER J DATE OF ORDER: 16 JANUARY 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Toby Smirke, David Smirke, Peggy Smirke, Linda Smirke, Lorraine Smirke, Ivan Smirke and Brenda Smirke (the replacement applicant) jointly replace the applicant to the current application WAD 6007 of 2000 pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA), on the grounds that: (a) SS is deceased; (b) the current applicant group is no longer authorised by the claim group to make the application and deal with matters arising in relation to it; and (c) the persons who comprise the replacement applicant are authorised by the claim group to make this application under s 66B of the NTA, and are authorised to bring the native title application and deal with matters arising in relation to it. 2. The heading of the current application be amended by the removal of the name of the applicant member SS from the title to the action, and add the names 'Ivan Smirke' and 'Brenda Smirke' as applicant members to the title to the action. 3. Service of the notice of motion and supporting documentation on any respondent other than the first respondent be dispensed with, but the replacement applicant notify the other respondents of the making of the order by email communication as soon as possible. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6007 of 2000 BETWEEN: JURRURU PEOPLE AND ORS Applicant AND: STATE OF WESTERN AUSTRALIA AND ORS Respondent JUDGE: BARKER J DATE: 16 JANUARY 2012 PLACE: PERTH REASONS FOR JUDGMENT application to replace current applicant 1 By application filed 27 October 2011 Toby Smirke, David Smirke, Peggy Smirke, Linda Smirke, Lorraine Smirke, Ivan Smirke and Brenda Smirke apply for an order under s 66B of the Native Title Act 1993 (Cth) (NTA) that they replace the current applicant. court's power to replace current applicant 2 Section 66B of the NTA provides 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, or of the compensation claim group (also the claim group) in relation to a compensation 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) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant: (i) the person consents to his or her replacement or removal; (ii) the person has died or become incapacitated; (iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; (iv) the person 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. … Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application. Court order (2) The Court may make the order if it is satisfied that the grounds are established. 3 The table to s 61(1) of the NTA indicates that the native title determination application must be brought by applicants who are authorised by the native title claim group. The term 'authorise' is defined in s 253 as having the meaning given to it by s 251B of the NTA. 4 Section 251B of the NTA provides as follows: 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. 5 The terms 'claimant application' and 'native title claim group' are defined in s 253 of the NTA: claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended. … native title claim group means: (a) in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or (b) in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made. grounds on which application is made 6 The application is brought under s 66B of the NTA on the following grounds: SS, one of the current applicants, is deceased; The persons comprising the proposed replacement applicant are all members of the native title claim group; The current applicant is no longer authorised by the claim group to make the application and deal with matters arising in relation to it; and The replacement applicant is authorised by the claim group to make the application and deal with matters arising under it. Consideration 7 The application is supported by two affidavits explaining the circumstances surrounding the Jurruru claim group community meeting held on 21 April 2011 in Paraburdoo and related matters, namely, the affidavits of Ms Penelope Muecke, lawyer, filed 27 October 2011 and Ms Linda Geddes, anthropologist, filed 27 October 2011. 8 Ms Muecke has been employed by Yamatji Marlpa Aboriginal Corporation (YMAC), a representative of the native title body for the Pilbara and Geraldton regions of Western Australia, since 2008. YMAC has represented and provided legal advice to the persons on whose behalf the claimant application in this proceeding is made. Ms Muecke has attended many Jurruru community meetings in her capacity as a claim lawyer. 9 Ms Geddes has been employed by YMAC as an in-house anthropologist since April 2009. A significant part of her work involves interviewing Aboriginal people and compiling genealogies. During the course of her employment, Ms Geddes has considered research material conducted by other anthropologists employed by YMAC (both in-house and external) in relation to the Jurruru claim. Ms Geddes has interviewed senior Jurruru members about their traditional law and culture and informed herself as to Jurruru genealogies and custom. 10 I am satisfied by the affidavit evidence that SS is deceased. A copy of SS's death certificate has not been provided to the Court. However, when a claimant dies a YMAC administrative assistant enters the date of death, if it is known, on the YMAC membership and files. Ms Muecke was informed of SS's death on 12 May 2009 by close members her family and by consulting the entry date on the YMAC files. 11 I am satisfied that the application is brought on the basis that persons comprising the replacement applicant are all members of the native title claim group. Based on Ms Geddes' research and knowledge of the Jurruru genealogies, the seven members of the replacement applicant appear to be descended from a Jurruru apical ancestor and form part of the Jurruru claim group. 12 Authorisation is one of the central issues in these proceedings and obtaining proper authorisation of a claim group is a fundamental requirement of the NTA. It is important in native title determination applications that those who purport to bring an application and to exercise, on behalf of the native title claim groups, the rights and responsibilities associated with such application have authority of their groups to do so: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (Bolton) at [43] per French J. 13 The purpose of the meeting called on 21 April 2011 was to seek instructions from the Jurruru community regarding the removal of SS from the applicant list and authorising the replacement applicant. 14 The applicant submits that the usual and accepted method for convening meetings of the Jurruru claim group is by way of notices posted and delivered to claim group members listed on YMAC database. YMAC maintains a database of Jurruru claim group members' contact details and the database is used when mailing notices of community meetings. Notice is also given by word of mouth through YMAC staff and by publishing the notices in regional newspapers. 15 Ms Muecke settled the notice for the meeting. The notice was posted on 25 March 2011 from YMAC's Perth office to the Jurruru claim group members listed on the YMAC database. The notice is titled 'Notice of Community Meeting to authorise the replacement of an Applicant and discuss other claim matters' and states that the meeting is open to all people who identify as Jurruru and are descendants of Kantitharra or Punartu apical ancestors. The body of the notice states that its 'purpose' is: 1. To authorise the following changes pursuant to s66B Native Title Act 1993: … To remove a deceased applicant member To elect a new applicant member 16 The notice for the 21 April 2011 meeting was also published in the following two regional Pilbara newspapers: Pilbara Echo on 26 March 2011; and Pilbara News on 30 March 2011 (Newspaper Notices). 17 The Newspaper Notices state that: Yamatji Marlpa Aboriginal Corporation (YMAC) invites members of the Jurruru native title claim group* to a community meeting. The meeting is to discuss claim business, including autthorisation (sic) for the removal of a deceased Applicant and the election of a new Applicant. All Jurruru people should attend. … * You are a member of this group if you are a Jurruru person, recognised by others as a Jurruru person and can establish your descent from any of the following apical ancestors: Kantitharra or Punartu 18 Both Ms Muecke and Ms Geddes had regular contact with the Jurruru claim group members in the period leading up to the 21 April 2011 meeting and accordingly, the meeting was discussed and details were confirmed. 19 Ms Muecke and Ms Geddes both state that they are not aware of any complaints from Jurruru claim group members that they were not aware of the 21 April 2011 meeting. 20 In the circumstances described above, I find that sufficient notice was given to all claimant group members of the agenda that involved authorisation of a replacement applicant. All the notices contained information specific to authorisation for the removal of a deceased applicant and the election of a new replacement applicant relevant to s 66B of the NTA. 21 At the 21 April 2011 community meeting held in Paraburdoo, the Jurruru claim group unanimously passed resolutions reflecting their decision to elect a new applicant. The claim lawyers read out the proposed resolutions to those in attendance and explained the purpose of the resolutions and why it was necessary to remove the deceased applicant: affidavit of Ms Muecke filed 27 October 2011 at [22]. 22 The resolutions passed at the meeting on 11 March 2010 are as follows: Authorisation Resolution 110421/2 Changing the Applicant The following changes are to be made to the list of applicants on the Jurruru Claim: (a) To remove [SS] as one of the names (sic) applicants on the Jurruru Claim (b) To add Ivan Smirke and Brenda Smirke as named applicants on the Jurruru Claim. Moved: Toby Smirke Seconded: David Smirke Carried: Unanimously carried. (agreed by consensus) (sic) Authorisation Resolution 110421/3 (a) Subject to (e) below, the existing applicant, being the following persons as a group, are no longer authorized (sic) to act as the applicant on the Jurruru Native Title determination application nor to deal with matters arising in relation to it: Toby Smirke, David Smirke, Peggy Smirke, Linda Smirke, [SS] and Lorraine Smirke (b) The following persons or such of them as consent (sic) and are eligible to be an applicant are thus authorised to act as the applicant on the Jurruru Native Title determination application and to deal with all matters arising in relation to it, subject to (c), (d) and (e) below: Toby Smirke, David Smirke, Peggy Smirke, Linda Smirke, Lorraine Smirke, Ivan Smirke and Brenda Smirke Should any individual amongst the Jurruru named applicants cease or not consent to be an applicant, then the remaining Jurruru named applicants remain authorized (sic) to make up and act as the applicant, subject to compliance with this resolution and any further resolution of the Jurruru Community. A person shall be deemed to not consent to be an applicant if the person resigns or signs a document to say they do not consent to be an applicant. (c) The applicants to the Jurruru Native Title Claim Group are however only authorised to make and deal with matters related to the Jurruru Native Title Claim to the extent that they are authorised or directed to do so in accordance with the decisions of the Jurruru Community meetings or, where the type of decisions have been delegated by the Jurruru Community to be made by the Jurruru Working Group, then in accordance with the decisions of the Jurruru Working Group. The said applicants shall be deemed to instruct YMAC in accordance with the said decisions of the community or working group meetings and YMAC is authorised to act in the name of the applicants in accordance with the said decisions of the Working or Community Group meetings (d) The said proposed applicants are authorised to bring an application in the Federal Court to replace the existing applicants. For the purposes of the application to replace the applicants, any and all of the replacement applicants are authorised to make affidavits drafted and requested by YMAC on behalf of the other replacement applicants. (e) The existing applicants are authorised to continue to be named as applicants to the extent deemed necessary by YMAC for the purposes of progressing the Native Title Claim or putting into effect decisions made by the Working Group or a Community meeting of the Jurruru Native Title Group but only until the above changes in the applicant have been effected by order of the Federal Court. Moved: David Smirke Seconded: Toby Smirke Carried: Unanimously carried. (agreed by show of hands) (sic) 23 The resolutions were passed unanimously. Ms Muecke and Ms Geddes both state that they did not observe any opposition, either verbally or non-verbally to the resolutions. Both did not receive any complaints in relation to the community meeting system adopted on 21 April 2011. 24 On these facts, consensus was achieved and there was no opposition to the resolutions either during or subsequent to the 21 April 2011 meeting. 25 The affidavits of Ms Muecke and Ms Geddes further reveal that the Jurruru claim group 'agreed to and adopted' a process of decision-making in accordance with s 251B(b) of the NTA for the purpose of making decisions of the kind contemplated under s 66B of the NTA. When attending Jurruru community meetings Ms Muecke and Ms Geddes observed that: there is no traditional process under Jurruru law and custom for making decisions as to the removal or authorisation of applicants as contemplated by s 66B of the NTA; and the agreed and adopted process of decision-making is by passing resolutions, agreed by consensus, at community meetings after discussions between group members with deference to the knowledge and seniority of the group's elders. If no consensus can be reached, then decisions are made by resolutions determined by a majority vote at such meetings. 26 The 'agreed and adopted' process of decision-making is used to make decisions about the Jurruru native title claim on a regular basis, including for decisions of the kind contemplated by s 66B of the NTA. 27 Ms Muecke's produces in her affidavit an 'authorisation resolution 110421/1' extract which clarifies that the decision-making process described above was adopted in the Jurruru community meeting held on 21 April 2011 in Paraburdoo. Ms Muecke personally observed the decision-making process on that day. 28 The Full Court of the Federal Court of Australia has confirmed that it is not necessary that an anterior systemic process of decision-making is agreed or adopted before the members of the native title claim group can validly resolve to remove an applicant in a native title determination application under s 251B(b) of the NTA: Noble v Murgha [2005] FCAFC 211 at [30]-[34]. Furthermore, the Full Court of the Federal Court of Australia in Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 at [18] accepted that: Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question. … Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. 29 I accept that that an agreement as to a decision-making process as contemplated by s 251B(b) of the NTA was established by the conduct of those present at the Jurruru community meeting on 21 April 2011, as explained by Ms Muecke and Ms Geddes. 30 The 'adoption' of a decision-making process pursuant to s 251B(b) of the NTA does not require proof that individual decisions were made by all, or most, of the members of the group to satisfy s 66B of the NTA. The NTA does not require that all members of the claim group be present or that all persons present agree: Lawson on behalf of the 'Pooncarie', Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (Lawson) at [25] per Stone J; Butchulla People v State of Queensland [2006] FCA 1063 at [33]; (2006) 154 FCR 233 at [33] per Kiefel J and Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48]. 31 It is sufficient if a decision is made once the members of the claim group are given every 'reasonable opportunity' to participate in the decision-making process and a 'technical and pedantic approach' is not required by the NTA: Lawson at [25] per Stone J. The representatives at a meeting to authorise the removal of the applicant group must be 'fairly representative of the native title claim [group] concerned': Bolton at [46] per French J. 32 I am satisfied on the affidavit evidence that members of the native title claim group were given a 'reasonable opportunity' to participate in the decision-making process at the meeting on 21 April 2011. I accept Ms Muecke and Ms Geddes' evidence that there was appropriate representation by the Jurruru families and the usual Jurruru claim group members attended. Ms Muecke also observed that those persons who passed the resolution at the 21 April 2011 meeting were members of the Jurruru claim group. Ms Geddes is of the belief, based on her knowledge and research into Jurruru genealogies, that there was an appropriate representation of Jurruru families in the claim group in attendance at the meeting. Ms Geddes also reviewed the attendance register to further inform herself. 33 While all Jurruru claim group members were invited to the 21 April 2011, not all attended, for various reasons. 34 Based on the affidavit evidence, I find that authorisation was given at the community meeting by a representative group of persons who constitute the native title claim group in the Jurruru claim and that there was adequate representation and the resolutions were properly authorised by the Jurruru claim group in accordance with the agreed decision-making process and adopted by the group for making decisions of this nature as provided for by s 251B of the NTA. Conclusion and orders 35 I am satisfied that authorisation was given by the Jurruru claim group to replace the current applicant. Sufficient steps were taken to ensure that all persons falling within the claim group description were given notice of the 21 April 2011 community meeting and there was adequate use of the agreed and adopted decision-making process. I accept the meeting itself produced a good cross-section of claim members from the Jurruru families and the resolutions received unanimous support from those who attended the meeting. 36 Accordingly, I am satisfied that the application to replace the current applicant with the replacement applicant should be allowed. I will make orders in terms of the minute of proposed orders filed on behalf of the applicant on 27 October 2011. 37 The Court orders that: 1. Toby Smirke, David Smirke, Peggy Smirke, Linda Smirke, Lorraine Smirke, Ivan Smirke and Brenda Smirke (the replacement applicant) jointly replace the applicant to the current application WAD 6007 of 2000 pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA), on the grounds that: (a) SS is deceased; (b) the current applicant group is no longer authorised by the claim group to make the application and deal with matters arising in relation to it; and (c) the persons who comprise the replacement applicant is authorised by the claim group to make this application under s 66B of the NTA, and are authorised to bring the native title application and deal with matters arising in relation to it. 2. The heading of the current application be amended by the removal of the name of the applicant member SS from the title to the action, and add the names 'Ivan Smirke' and 'Brenda Smirke' as applicant members to the title to the action. 3. Service of the notice of motion and supporting documentation on any respondent other than the first respondent be dispensed with, but the replacement applicant notify the other respondents of the making of the order by email communication as soon as possible. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 16 January 2012