FEDERAL COURT OF AUSTRALIA Weribone on behalf of the Mandandanji People v State of Queensland [2016] FCA 425 File number: QUD 366 of 2008 Judge: RARES J Date of judgment: 25 May 2016 Legislation: Native Title Act 1993 (Cth) ss 66B, 251B Date of hearing: 25 May 2016 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: No Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr A Preston Solicitor for the Applicant: Queensland South Native Title Services Counsel for the State of Queensland: Ms E Longbottom Solicitor for the State of Queensland: Crown Law Counsel for the Commonwealth: Ms J McDonald Solicitor for the Commonwealth: Australian Government Solicitor Counsel for Balonne Shire Council, Goondiwindi Regional Council, Maranoa Regional Council, Western Downs Regional Council and Ergon Energy Corporation Limited: Ms J Humphris Solicitor for Balonne Shire Council, Goondiwindi Regional Council, Maranoa Regional Council, Western Downs Regional Council and Ergon Energy Corporation Limited: MacDonnells Law Counsel for AA Company Pty Ltd, Iris Aldridge, Melissa Jane Elliott, Shane Ray Elliott, Charles Norman Nason, Sarah Hamilton Nason, Carolyn Jane Redgen, Mark Douglas Redgen, John Henry Russell, Ronald Eric Tarry, Usher Pastoral Company Pty Ltd and Colin Thomas Varidel: Mr M Boge Solicitor for AA Company Pty Ltd, Iris Aldridge, Melissa Jane Elliott, Shane Ray Elliott, Charles Norman Nason, Sarah Hamilton Nason, Carolyn Jane Redgen, Mark Douglas Redgen, John Henry Russell, Ronald Eric Tarry, Usher Pastoral Company Pty Ltd and Colin Thomas Varidel: Thynne & Macartney Counsel for Glencore Coal Queensland Pty Limited: Ms A Moffatt Solicitor for Glencore Coal Queensland Pty Limited: Allens ORDERS QUD 366 of 2008 BETWEEN: LESLIE WERIBONE & ORS ON BEHALF OF THE MANDANDANJI PEOPLE Applicant AND: STATE OF QUEENSLAND & ORS Respondent JUDGE: RARES J DATE OF ORDER: 25 MAY 2016 THE COURT ORDERS THAT: 1. The applicant have leave to file a further amended claimant application substantially in the form of annexure WTQ-07 to the affidavit of Wati Taraivini Qalotaki affirmed on 19 May 2016, within 7 days after these orders are entered 2. On or before 27 May 2016, the applicant serve Madonna Barnes by prepaid registered post, at the address at which it served her by letter dated 6 April 2016, with the Interlocutory Application filed on 20 May 2016 and the affidavit of Wati Taraivini Qalotaki affirmed 19 May 2016, the affidavit of Annie Louise O'Riley affirmed 24 May 2016 and the affidavit of Nancy Francois affirmed 6 April 2016, together with these orders. 3. If Madonna Barnes wishes to oppose the entry of the orders made today, so that they do not become operative, she file and serve an affidavit on or before 6 June 2016 and if no such affidavit is filed and served on or before 6 June 2016, these orders be entered on 7 June 2016. 4. The time for service of the sealed copies of the interlocutory application filed on 20 May 2016 and the sealed copy of the affidavit of Wati Taraivini Qalotaki, affirmed 19 May 2016, be abridged nunc pro tunc to 20 May 2016. 5. The proceeding be listed for directions at 9:00am on 23 August 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 The applicant, on behalf of the Mandandanji People, has brought this interlocutory application to further amend the form 1 in these proceedings so as substantively to reduce the area the subject of the claim, for the purposes of bringing these proceedings to finality. Background 2 On 23 March 2016, I made orders for the applicant to consult with the State, and active parties, and prepare draft directions for the purpose of giving notice, on or before 6 April 2016, to those indigenous respondents who have not filed an address for service in the proceedings. I also required the applicant to file an affidavit by that date as to the means of giving notice, to those indigenous respondents, of the directions hearing, any interlocutory application that the applicant might seek to have heard today, and the final hearing, that I had fixed to commence on 28 November 2016. I also ordered the applicant to file and serve, on or before 19 May 2016, any interlocutory application to amend any part of the form 1 native title determination application, together with any affidavits in support, and any directions sought and for any person wishing to oppose that amendment to do so by filing any affidavits by noon on 24 May 2016. 3 In the event, the applicant served unsealed copies of the interlocutory application and affidavits in support by email on 19 May 2016 and sealed copies of those documents on 20 May 2016. For the reasons that I will explain below, I propose to abridge the time for the service of the sealed copies to 20 May 2016 nunc pro tunc. 4 No one has filed any affidavits, or given any other indication, that the orders sought in the interlocutory application for amendment of the form 1 in these proceedings are opposed. All of the active parties today have said that they do not oppose the making of that order, and made no submissions in respect of it. 5 In April 2016, Queensland South Native Title Services Limited (QSNTS) caused two authorisation meetings to be called by the applicant, held at the Roma Explorers Inn Convention and Function Centre on 7 May 2016. 6 I am satisfied, by the affidavit of Wati Qalotaki, the solicitor at QSNTS acting for the applicant, affirmed 19 May 2016, that notice of those meetings was extensively advertised in notices placed in the Courier Mail on 19 and 23 April 2016, the Toowoomba publication, The Chronicle on 19 and 23 April 2016, the Roma publication, the Western Star on 19 April 2016 and in The Koori Mail on 20 April 2016. The advertised notices convened authorisation meetings on 7 May 2016 for proposed amendment of the Mandandanji People's native title claim, the first meeting to commence at 9 am and the second not before 11.30 am. The notices identified by name the apical ancestors of those who currently comprise the claim group, namely Nellie Edwards, Weribone Jack senior, Combarngo Bill, and Mary Weribone. The notices set out, in clear detail, the purposes of the first meeting, namely to retract the boundaries currently claimed to the smaller area proposed as shown on a map and they also explained those reductions by reference to place names. 7 The notices also stated that the first meeting would consider the outcome of the latest anthropological and genealogical research, so as to enable the claim group to decide whether to amend the description of its make up, specifically by either retaining or removing the descendants of Weribone Jack senior, and or by including the descendants of Bella (mother of May Cavanagh), Nellie of Surat, Jinnie West, Mollie of Roma, and Ellen Daisy. The notices stated that the descendants of the possible additional apical ancestors would be invited to address the first meeting as to whether they should be included in the claim group, but that those persons would not be able to vote or be present during or participate in, the decision-making. 8 The notices stated that if the first meeting did not authorise any amendment to the make up or description of the current applicant, then the second meeting may not be necessary, and would not take place, but that if there were such amendments then the second meeting would be convened with the persons who were the descendants of the apical ancestors identified by the first meeting as those who would constitute, henceforth, the claim group. The notices stated that the business of the second meeting, to commence not before 11.30 am, would be to authorise an applicant and, where required, to make an application under s 66B of the Native Title Act 1993 (Cth), as well as to make a further amended claimant application as authorised. 9 The notices stated that persons would be required to register before each of the meetings occurred. It gave a toll free number for persons to call, to advise of their intention to attend and participate. It also gave notice of two information sessions that QSNTS had organised on 30 April 2016 and 6 May 2016 at the venue for the meeting. The notice explained that QSNTS was unable to assist with transport to or from the meetings, or information sessions, or with accommodation costs, but stated that morning tea, lunch, and afternoon tea would be provided to the persons at the meeting. 10 QSNTS also notified all the persons, whose names, addresses, and phone numbers it maintained on its register of those who had advised it that they were Mandandanji People. First, on 11 April and 3 May 2016, Ms Qalotaki caused her staff to forward notification letters about the authorisation meetings and the matters to be discussed to more than 200 members of the Mandandanji People for whom QSNTS had addresses on its register. The first of those letters substantively set out the matters in the published advertisements but also included further confidential material, including legal advice from QSNTS, that is not itself in evidence on this application. The second of the letters enclosed a draft agenda that included draft resolutions and notice of the information session to be held on 6 May 2016, encouraging persons to attend. 11 QSNTS also sent a series of short message service, or SMS, text messages to 152 Mandandanji People on its register with mobile phone numbers. The SMSs were successfully delivered to 129 recipients. The SMSs informed recipients of the two information sessions and the authorisation meeting at Roma Explorers Inn Convention Centre and the free call number. QSNTS also gave notice of the authorisation meetings on its public website, its Facebook page and its Twitter account. 12 Ms Qalotaki said that, between 22 April and 5 May 2016, community relations officers employed by QSNTS also contacted 167 persons on its database of the Mandandanji People. I infer that the balance of the 208 persons had no telephone contact details. Seventy-nine of the persons contacted provided responses, 51 of them indicating that they would be attending the meeting and 26 that they would not, while two remained unsure. 13 I am satisfied by the affidavit of Annie Louise O'Reilly, affirmed 24 May 2016, that subject to one exception, all respondents to the proceedings for whom QSNTS and the Mandandanji People have contact details have been served with the interlocutory application and the affidavit of Ms Qalotaki of 19 May 2016 in support of it. The exception is that Madonna Barnes does not appear to have been served with the interlocutory application and Ms Qalotaki's affidavit even though the letter of 6 April 2016 had been sent to an address for her that QSNTS had obtained from the Australian Electoral Commission's records referring to the Court's orders of 2 and 18 December 2015 and 23 March 2016. That letter, as I have mentioned earlier, gave notice of today's directions hearing and foreshadowed that a proposed interlocutory application would be filed on 19 May 2016 in which orders would be sought to seek to amend the claim today. 14 Ms Barnes did not reply to the 6 April 2016 letter. Nonetheless, as I discussed with counsel for the applicant during the course of argument, while I consider it likely that Ms Barnes has had notice, I propose to order that she be served with the orders I will make today together with sealed copies of the interlocutory application and the affidavits of Ms Qalotaki and Ms O'Reilly, together with a further affidavit of Nancy Francois affirmed 6 April 2016 that detailed how service of the documents ordered to be served on 23 March 2016 had occurred. I will allow Ms Barnes some time to file and serve any affidavit on which she proposes to rely to contend that the orders that I propose to make today should not be entered forthwith thereafter. The authorisation meetings 15 Ms Qalotaki was present during the course of the authorisation meetings held on 7 May 2016. A total of 95 persons registered prior to the first meeting commencing, 49 of them tracing their apical ancestor to Weribone Jack senior, eight to Mary Weribone, 10 to Combarngo Bill and 28 to Nellie Edwards. Ms Qalotaki said that no descendants of any of the proposed apical ancestors named in the notice of meeting appeared, or attended, at registration for the first meeting in order to, present or speak to that meeting about any assertions they might have wished to make concerning any claim of connection to country or to become part of an amended claim group seeking a determination of native title over the land and waters the subject of the current claim or the proposed reduced claim area. 16 Ms Qalotaki said that the first meeting commenced at about 9.35 am and that every resolution for consideration, discussion and decision was displayed on a PowerPoint slide in front of the attendees. She explained the relevant proposed resolution, answered questions and provided legal advice to those present as and when required. Ms Qalotaki explained that, given that there was no accepted traditional decision-making process, the first meeting considered three proposed decision-making processes for the purposes of s 251B(b) of the Act. The first of those proposed resolutions (resolution 5) was withdrawn, and after a break, of about 25 minutes for morning tea, for discussion between the participants, a second proposal was advanced (resolution 6). That resolution was unsuccessful by a majority of the votes. A third motion (resolution 7) was then proposed and was passed unanimously by 86 votes with no abstentions. Thereafter the meeting was conducted using the agreed resolution making process. 17 Dr John Morton, an expert anthropologist, gave a presentation to the first meeting of his findings and opinions of anthropological matters relating to the claim boundaries and the traditional laws and customs relevant to the acquisition of rights as a member of the Mandandanji land owning group. His presentation covered eligibility requirements for recruitment to and membership of that group, information derived from the literature about Weribone Jack senior, the five possible proposed additional apical ancestors and the results of his fieldwork. He also spoke about his consideration of interviews with the contemporary claimants and descendants of the proposed apical ancestors, except Ellen Daisy, who had no known living descendants. Ms Qalotaki gave legal advice about those matters to the claim group. 18 The first meeting passed a resolution that the claim area would be reduced and the boundaries retracted to those proposed in the notice of that meeting. When the motion to consider whether Weribone Jack senior should be retained as an apical ancestor was put, 69 voted in favour, 5 against, with no abstentions. Although no voting numbers were taken in relation to the addition of other apical ancestors, the minutes recorded that a "clear majority" voted against the inclusion of each, after consideration of anthropological and legal advice in relation to those persons, and that a clear majority confirmed that the current description of the claim group, by reference to the current apical ancestors, be confirmed. 19 The first meeting concluded at 3.20 pm. Ms Qalotaki noted that because there had been no change to the apical ancestors used to describe the constituents of the claim group, a second meeting was unnecessary, but that for the purposes of completeness, best practice and transparency, it was decided to conduct a second meeting. 20 At the second meeting, 85 members of the claim group registered, being all of those who had registered for the earlier meeting, less some who, by then, had left. The second meeting adopted the same decision-making process and resolutions were put to the second meeting in the same way as those for the first. 21 The minutes for the second meeting also recorded that clear majorities resolved that the current description of the claim group's apical ancestors be retained. That meeting resolved by 31 votes to 27 that the current persons constituting the applicant in the proceedings were authorised jointly to continue as applicant, under a set of detailed terms and conditions of appointment that the meeting endorsed, and to make the further amended application on behalf of the claim group. A subsequent resolution resolved by 72 votes to 1 that the applicant was authorised to make this interlocutory application, so as to implement the decisions of the two meetings of 7 May 2016 and, subject to legal advice, to effect any necessary and essential amendments that might be required to put the Mandandanji claimant application in proper form before the Court. The second meeting closed at 4.15 pm. Consideration 22 I am satisfied that the resolutions at the two meetings of 7 May 2016 authorised the making of the further amended application by the applicant, pursuant to s 251B of the Act. There is no reason, on the evidence before me, to suggest that the further amended application ought not be filed subject to the condition, to which I have referred, to afford Ms Barnes an opportunity to oppose that course in any affidavit she might wish to make. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 8 July 2016