FEDERAL COURT OF AUSTRALIA Frank on behalf of the Mayala People v State of Western Australia (No 3) [2016] FCA 1255 File number(s): WAD 6255 of 1998 Judge(s): BARKER J Date of judgment: 21 October 2016 Catchwords: NATIVE TITLE – application to replace current applicant under s 66B of the Native Title Act 1993 (Cth) – whether replacement applicant comprised of members of claim group – whether circumstances in s 66B(1)(a) established – whether replacement applicant authorised by claim group – discretion to make order under s 66B Legislation: Native Title Act 1993 (Cth) ss 66B, 66B(1), 66B(1)(a), 66B(2), 251B, 251B(b) Cases cited: Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590 Daniel and Others v Western Australia and Others (2002) 194 ALR 278; [2002] FCA 1147 Jurruru People v State of Western Australia [2012] FCA 2 Stock v State of Western Australia [2014] FCA 179 TJ v State of Western Australia [2015] FCA 818 Date of hearing: Determined on the papers Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Mr D Mavec Solicitor for the Applicant: Kimberley Land Council ORDERS WAD 6255 of 1998 BETWEEN: YANKUI FRANK & ORS Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondents JUDGE: BARKER J DATE OF ORDER: 21 October 2016 THE COURT ORDERS THAT: 1. Pursuant to s 66B of the Native Title Act 1993 (Cth), the current applicant is replaced by Yankui Frank, Max Ejai, Janella Isaac, Jodi Humphries and Valarie Wiggan. 2. Any requirement to file and serve an amended claimant application be waived. 3. Service of this interlocutory application on any respondent other than the State of Western Australia, be dispensed with. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 Yankui Frank, Max Ejai, Janella Isaac, Jodi Humphries and Valarie Wiggan (collectively the replacement applicant) apply to jointly replace Yankui Frank, Mr Ejai (deceased), Janella Isaac, Jodi Humphries and Valarie Wiggan (collectively the current applicant) in this claimant application under the Native Title Act 1993 (Cth) (NTA). 2 An interlocutory application to this end was filed 11 October 2016 and a minute of proposed consent orders signed by the applicant, the Commonwealth of Australia, the Shire of Derby/West Kimberley, Clipper Holdings Pty Ltd T/A Clipper Pearls and Maxima Pearling Co Pty Ltd was provided to the Court on 19 October 2016. The State of Western Australia indicated it neither consented to nor opposed the orders sought and no response was received from the other respondents, and so the Court determined to decide the application on the papers. 3 The replacement applicant seeks to replace the current applicant on the basis that the second named person who comprises, with others, the applicant is deceased. 4 The Court's power to make the order sought arises under s 66B of the NTA. By subs 66B(2), the Court may make the order if it is satisfied that the grounds set out in subs (1) are established. Subsection 66B(1) provides that: (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. 5 The issues that arise on the determination of the interlocutory application are therefore: (1) Whether the replacement applicant is comprised of members of the claim group in this matter. (2) Whether the relevant member of the current applicant is deceased. (3) Whether the replacement applicant is authorised by the claim group to make the claimant application and deal with matters arising in relation to it. (4) Whether it is appropriate that such an order be made. is the replacement applicant comprised of members of the claim group? 6 I am satisfied that the replacement applicant is comprised of persons who are members of the claim group. Is the relevant member of the current applicant deceased? 7 The relevant circumstance for replacement under s 66B(1)(a) is whether Mr Ejai (deceased) is deceased. 8 I accept the evidence contained in the affidavit of Max Ejai sworn 7 October 2016 at [7], that he is. is the replacement applicant authorised? 9 The reference to "authorised" in s 66B is a reference to authorisation, and withdrawal of authorisation, in accordance with a decision-making process under s 251B of the NTA. See the note to s 66B(1) and Daniel and Others v Western Australia and Others (2002) 194 ALR 278 at [10] and [14]; [2002] FCA 1147. 10 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. 11 Para 251B(b) does not require that, in circumstances where there is no traditional decision-making process, all members of the claim group be involved in making the decision, or that the vote be a unanimous vote of every member; rather, it requires giving to persons whose whereabouts are known, and have capacity to authorise, a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process. See, for example, Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590 at [13]; and Jurruru People v State of Western Australia [2012] FCA 2 at [30]-[31]. 12 The applicant relies on the evidence contained in the affidavits of Max Ejai sworn 7 October 2016; Dante Mavec affirmed 10 October 2016; Chadwick Creighton affirmed 22 June 2016; Yankui Frank affirmed 20 June 2016; Janella Isaac affirmed 20 June 2016; Jodi Humphries affirmed 20 June 2016; and Valarie Wiggan affirmed 20 June 2016, concerning the resolutions made at an authorisation meeting on 8 and 9 June 2016, preceding the member's passing. 13 The authorisation meeting on 8 and 9 June 2016 adopted a decision-making process and, pursuant to that process, authorised the current applicant. It also authorised certain named individuals to replace the members of the current applicant in circumstances where one or more of the members died or otherwise became incapable, unable or unwilling to continue to be a part of the applicant. Max Ejai was the individual authorised to replace Mr Ejai pursuant to these resolutions. 14 The meeting was attended by 151 claimants on the first day and 98 claimants on the second day. I find those claim group members present were an appropriate representation of the families that comprise the Mayala claim group, including cultural elders. See the affidavit of Chadwick Creighton affirmed 22 June 2016 at [23]–[25]. 15 I accept the meeting was convened by a "save the date" notice posted on 26 April 2016 to all members of the Mayala claim group whose contact details were known by the Kimberley Land Council, in its capacity as the representative body. A meeting notice was then posted to the same persons on 9 May 2016, posted on numerous public notice boards in areas where they were likely to be seen by the Mayala claimants, and advertised in the Pilbara News and the Broome Advertiser. 16 I accept that, on the evidence, there is no traditional decision-making process that must be used in order for the claim group to make authorisation decisions. Accordingly, authorisation could be given by way of a process that was agreed and adopted at the meeting pursuant to para 251B(b). 17 I further accept that at the meeting, by way of a decision-making process agreed and adopted at that same meeting, the Mayala claim group resolved to make the following Resolution 2D: Resolution 2D: In the event that one or more of the individuals authorised to be the Applicant dies or otherwise becomes incapable, unable or unwilling to continue to be a part of the Applicant ("an Applicant member leaves"): • If the Applicant member who leaves has a corresponding Replacement Applicant listed below ("the Replacement Applicant member"), the Replacement Applicant member is authorised to deal with all matters arising in relation to the Claim along with and on the same conditions as the remaining members of the Applicant at the time the Applicant member leaves. • If the Applicant member who leaves does not have a corresponding Replacement Applicant listed below, the remaining persons who comprise the Applicant together may continue to act as the Applicant. The Mayala Claim Group makes this resolution with the intention that an application could be brought under section 668 of the Native Title Act without the need for further authorisation by the Mayala Claim Group. Current Applicant Replacement Applicant Doreen Frank Yankui Frank [Mr Ejai] Max Ejai Janella Isaac Jahni Isaac Jodi Humphries Keagan Berry Valarie Wiggan Kathy McKenzie 18 The present interlocutory application to replace the current applicant with the replacement applicant due to the death of Mr Ejai is one of the consequences of this resolution. 19 In the circumstances, I accept that Resolution 2D above means the claim group effectively authorised the replacement applicant to make the claimant application and deal with matters arising in relation to it, notwithstanding that it did so prior to the member's passing. There is no reason to consider that the authorisation has lapsed or been revoked. Is it appropriate to make the order? 20 Finally, subs 66B(2) gives the Court a discretion as to whether or not in any case an order replacing an applicant should be made. See TJ v State of Western Australia [2015] FCA 818 at [107]; Stock v State of Western Australia [2014] FCA 179 at [25]. There is, in my view, no reason why the orders sought should not be made. 21 In these circumstances, the Court will make the orders set out in the minute of proposed consent orders: 1. Pursuant to s 66B of the Native Title Act 1993 (Cth), the current applicant is replaced by Yankui Frank, Max Ejai, Janella Isaac, Jodi Humphries and Valarie Wiggan. 2. That any requirement to file and serve an amended claimant application be waived. 3. Service of this interlocutory application on any respondent other than the State of Western Australia, be dispensed with. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 21 October 2016