Dann v State of Western Australia [2011] FCA 99 (14 February 2011)

Last Updated: 15 February 2011

FEDERAL COURT OF AUSTRALIA

Dann v State of Western Australia [2011] FCA 99

Citation:		Dann v State of Western Australia [2011] FCA 99
Parties:		RAYMOND DANN, BARRY DODD, WAYNE WARNER, RON RONAN, ROB RONAN, ROD LITTLE, CLARRIE CAMERON, BETTY FORSYTH, DONNA RONAN AND CW ON BEHALF OF THE AMANGU PEOPLE v THE STATE OF WESTERN AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, EUNICE BURNS BARNDON, NORMAN VAUGHAN BARNDON, ROBERT JOHN GILLAM, ROSLYN JOYCE GILLAM, IFS HOLDINGS PTY LTD, ELLEN CECELIA ROWE, KAREN PATRICE TYNAN, RAYMOND KENNETH TYNAN, MG KAILIS (1962) PTY LTD, MARK RAYMOND NEAVE, ARDLUI HOLDINGS PTY LTD, DBNGP (WA) NOMINEES PTY LTD, THE TRUSTEES OF THE NORTHERN DIOCESE and TELSTRA CORPORATION PTY LTD
File number:		WAD 6002 of 2004
Judge:		BARKER J
Date of judgment:		14 February 2011
Catchwords:		NATIVE TITLE – notice of motion to replace applicants in application for determination of native title – s 66B Native Title Act 1993 (Cth) – authorisation meeting voted to replace applicants – whether sufficient notice given of authorisation meeting - whether authorisation meeting properly conducted – whether those in attendance at authorisation meeting were members of the claim group – whether those in attendance at the authorisation meeting were representative of the claim group
Legislation:		Native Title Act 1993 (Cth) s 66B, s 251B(a)
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
Date of hearing:	11 November 2010
Date of last submissions:	7 December 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Solicitor for the Applicant:	Mr DP Jacobs of Yamatji Marlpa Aboriginal Corporation
Counsel for Mr Rod Little:	Mr THF Caspersz
Solicitor for Mr Rod Little:	Gadens Lawyers
Counsel for the First Respondent:	Mr D Anderson
Solicitor for the First Respondent:	State Solicitors Office

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6002 of 2004

BETWEEN:

RAYMOND DANN, BARRY DODD, WAYNE WARNER, RON RONAN, ROB RONAN, ROD LITTLE, CLARRIE CAMERON, BETTY FORSYTH, DONNA RONAN AND CW ON BEHALF OF THE AMANGU PEOPLE Applicant

AND:

THE STATE OF WESTERN AUSTRALIA First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent EUNICE BURNS BARNDON Third Respondent NORMAN VAUGHAN BARNDON Fourth Respondent ROBERT JOHN GILLAM Fifth Respondent ROSLYN JOYCE GILLAM Sixth Respondent IFS HOLDINGS PTY LTD Seventh Respondent ELLEN CECELIA ROWE Eighth Respondent KAREN PATRICE TYNAN Ninth Respondent RAYMOND KENNETH TYNAN Tenth Respondent MG KAILIS (1962) PTY LTD Eleventh Respondent MARK RAYMOND NEAVE Twelfth Respondent ARDLUI HOLDINGS PTY LTD Thirteenth Respondent DBNGP (WA) NOMINEES PTY LTD Fourteenth Respondent THE TRUSTEES OF THE NORTHERN DIOCESE Fifteenth Respondent TELSTRA CORPORATION PTY LTD Sixteenth Respondent

JUDGE:	BARKER J
DATE OF ORDER:	14 FEBRUARY 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. Frederick Taylor Senior, Rod Little, Barry Dodd, Ross Oakley, Rob Ronan, Ruby McKinnon, Clarrie Cameron, Thomas Cameron, Malcolm Whitby, Ron Tolputt and Anita Farrell (the replacement applicant) do jointly replace all of the persons currently comprising the applicant on the grounds that:

(a) CW is deceased;

(b) the current applicant group is no longer authorised by the claim group to make the application or to deal with matters arising in relation to it; and

(c) the replacement applicant is authorised by the claim group to make the application and deal with matters arising in relation to it.

2. The heading of the current application be amended by the removal of the words “Raymond Dann, Barry Dodd, Wayne Warner, Ron Ronan, Rob Ronan, Rod Little, Clarrie Cameron, Betty Forsyth, Donna Ronan and CW” from the title of the action and by the addition of the words “Frederick Taylor Senior, Rod Little, Barry Dodd, Ross Oakley, Rob Ronan, Ruby McKinnon, Clarrie Cameron, Thomas Cameron, Malcolm Whitby, Ron Tolputt and Anita Farrell” to the title of the action.
3. Service of this motion and supporting documentation on any person other than the first respondent and Mr Rod Little, by post to his usual address, be dispensed with, but the applicant notify the other respondents of the making of the order by email communication or post as soon as practicable.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6002 of 2004

BETWEEN:

RAYMOND DANN, BARRY DODD, WAYNE WARNER, RON RONAN, ROB RONAN, ROD LITTLE, CLARRIE CAMERON, BETTY FORSYTH, DONNA RONAN AND CW ON BEHALF OF THE AMANGU PEOPLE Applicant

AND:

THE STATE OF WESTERN AUSTRALIA First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent EUNICE BURNS BARNDON Third Respondent NORMAN VAUGHAN BARNDON Fourth Respondent ROBERT JOHN GILLAM Fifth Respondent ROSLYN JOYCE GILLAM Sixth Respondent IFS HOLDINGS PTY LTD Seventh Respondent ELLEN CECELIA ROWE Eighth Respondent KAREN PATRICE TYNAN Ninth Respondent RAYMOND KENNETH TYNAN Tenth Respondent MG KAILIS (1962) PTY LTD Eleventh Respondent MARK RAYMOND NEAVE Twelfth Respondent ARDLUI HOLDINGS PTY LTD Thirteenth Respondent DBNGP (WA) NOMINEES PTY LTD Fourteenth Respondent THE TRUSTEES OF THE NORTHERN DIOCESE Fifteenth Respondent TELSTRA CORPORATION PTY LTD Sixteenth Respondent

JUDGE:	BARKER J
DATE:	14 FEBRUARY 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

APPLICATION TO REPLACE APPLICANT

1. By notice of motion filed 7 September 2010 the current applicants move, pursuant to s 66B Native Title Act 1993 (Cth) (NTA), for orders that they be replaced by another group of persons (the replacement applicants), namely: Frederick Taylor Senior, Rod Little, Barry Dodd, Ross Oakley, Rob Ronan, Ruby McKinnon, Clarrie Cameron, Thomas Cameron, Malcolm Whitby, Ron Tolputt and Anita Farrell, on grounds referred to in s 66B, namely:

(a) one of the current applicants, CW (name withheld for cultural reasons), is deceased.

(b) the current applicant group is no longer authorised by the claim group to make the application to do with matters arising in relation to it; and

(c) the replacement applicant is authorised by the claim group to make the application and deal with matters arising in relation to it.

2. The notice of motion is supported by a number of affidavits explaining the circumstances in which the application was brought, including those of Daniel Paul Jacobs, lawyer, affirmed 1 September 2010 and Sanna Nalder, anthropologist, affirmed 20 September 2010.
3. In his affidavit, Mr Jacobs explains that he is a lawyer employed by Yamatji Marlpa Aboriginal Corporation (YMAC), a representative Aboriginal/Torres Strait Islander body (as defined in the NTA) for the Murchison and Gascoyne Regions of Western Australia.
4. He affirms that he was authorised to make the affidavit in support of the notice of motion. He explains that YMAC has represented and provided legal advice to the persons on whose behalf the claimant application in this proceeding is made. He has had the carriage of that application since March 2010. Prior to that he was employed as an articled clerk by YMAC and assisted the lawyers who had the carriage of the claimant application from August 2009 onwards.
5. Mr Jacobs produces a true and correct copy of the death certificate of CW that confirms the information and belief he had from consulting the YMAC file that CW was deceased.
6. Mr Jacobs also explains that he was informed by Sanna Nalder as to her belief that each of the members of the replacement applicant is a member of the Amangu claim, being a short hand expression for the group said to hold native title rights and interests under this claimant application. I will refer later to Ms Nalder’s affidavit.
7. Mr Jacobs further explains that he attended the Amangu community meeting of 11 March 2010 held at the Geraldton Yacht Club in his capacity as assisting lawyer for the claim. On the basis of his understanding and experience of the Amangu community’s traditional laws and customs he believes that the claim group as a whole has no traditional decision-making process that must be followed for decisions of the kind contemplated by s 66B of the NTA. He states, however, that that is not to say that there are no traditional laws and customs relating to general decision-making principles, or relating to people with authority to speak for Amangu country or to carry out traditional responsibilities in relation to Amangu country. However, within the claim group as a whole, there are no cultural precedents for decisions such as those concerning the authorisation or removal of applicants pursuant to s 66B. Such decisions are not part of traditional law and culture and this was confirmed by the Amangu claim group by resolution, to which I will refer later.
8. Mr Jacobs further states that he is aware that a majority voting system is used at community meetings as the Amangu claim group’s agreed and adopted means for making important native title decisions, such as selecting working groups and authorising certain legal actions. All members of the Amangu claim group are invited to attend and participate in such meetings and decisions are made on behalf of the claim group by a majority of Amangu people in attendance. He states that in almost all cases, the claim group make decisions by a majority vote. Mr Jacobs states that he personally observed this decision-making process being used at the 11 March 2010 community meeting. The decision-making process was also confirmed by resolution of the group, as I will mention later.
9. Mr Jacobs further states that he is not aware of any complaints about the community meeting system as a process for making decisions for the Amangu claim group. His experience is that the process is accepted by the claim group as the way to make important decisions about the claim.
10. Mr Jacobs further states in his affidavit that he understands from YMAC files, including research conducted by anthropologists engaged by YMAC and Amangu claimants, and believes that under traditional laws and customs of the Amangu group, membership is primarily reckoned by descent from one of more of the following apical ancestors, or by adoption by such a descendant in accordance with traditional law and custom, namely:

(a) George Ronan

(b) Wyoo and Myonoda

(c) Annie Tira and Jimmy Ookawah

(d) Lizzie Flynn

(e) Sarah Jane Campbell

(f) Sarah Mabel Bell

(g) Jinny Phillips

(h) Jane Hunt

(i) John and Mary Bynder

(j) Alfred Taylor

(k) Billy and Judy Thompson,

and by identification as an Amangu person.

11. Mr Jacobs states that YMAC maintains a database of the contact details of all members of the Amangu claim group of whom it is aware and he, or they, use this database to send notices of meetings. The community liaison officers provide regular updates of contact details for claimants, which are amended on the database as required.
12. Mr Jacobs further states that it is the practice of the YMAC to mail notice of Amangu community meetings to every person listed in the Amangu claim database. This process was used for the 11 March 2010 community meeting.
13. I accept the statements and expressions of understanding by Mr Jacobs for the purposes of this application. It appears that on or about 4 February 2010, YMAC sent notices regarding the 11 March 2010 community meeting to all persons listed on YMAC’s Amangu claim database. The notice indicated that Amangu people should attend the community meeting to deal with important claim business, including a s 66B application to amend and authorise the Amangu applicants. The meeting agenda was expressed in the body of the notice in the following terms:

Authorise a working group, ensure the authorisation of the applicant (section 66B Native Title Act 1993); and receive updates on Amangu claim business.

14. As explained below, while this notice referred to an attached agenda, no such document was in fact attached or circulated.
15. Notices regarding the 11 March 2010 meeting were also faxed to a number of organisations located in towns where Amangu people commonly live. They are too numerous to mention here but include many Aboriginal organisations and local governments in a number of regions of the State where Amangu people are believed to reside.
16. On about 3 March 2010 notices advertising the meeting were also published in the Geraldton Guardian newspaper.
17. I also accept that community liaison officers and lawyers, employed by YMAC, in accordance with usual practice, spread information about the meeting through the Amangu claim group through word of mouth.
18. The Amangu community meeting was duly held on 11 March 2010. An attendance list, in accordance with usual YMAC practice, was maintained and was produced to the Court by Mr Jacobs in his affidavit. The surname, first name, current address, any change of address and information concerning from where persons had travelled and how far, as well as the signature of attendees and an indication that an apical ancestor form had been completed, appear on the attendance list. The meeting appears to have been reasonably well attended.
19. Mr Jacobs says that based on his knowledge and experience of the Amangu claim, which I am prepared to accept for the purposes of this application, the meeting was attended by a representative group of the Amangu claim group. No complaints were made to him at the time of that the community meeting did not represent the family groups that make up the Amangu claimant group.
20. At the 11 March 2010 community meeting, Greg Young, a solicitor at YMAC, explained to the claim group members that were present that the role of the applicant and one of the purposes of the meeting was for the applicant group to consider amending the current applicant. At the meeting, apart from CW who had earlier passed away, the other surviving members of the current applicant, besides Ron Ronan, Rod Little and Ray Dann, were present. Mr Little resided in Canberra at that time. Mr Dann had given his apologies as he was unable to attend due to work commitments.
21. After group discussion about the role of the applicant and the working group, a series of resolutions were put to the meeting to reflect their decision to elect a new applicant. Mr Young, the lawyer, spoke to the meeting about the role of the applicant and stated that the applicant for Amangu was not representative of the families contained in the claim group description. It also appears Ms Nalder spoke to similar effect. There was general agreement indicated with the proposed resolutions to replace the current applicant for this reason. After explaining the resolution, Shazhad Rind, another lawyer employed by YMAC, called for a “mover” and “seconder” to the resolution as is usual at Amangu meetings, to which members of the Amangu claim group raised their hand. Shazhad Rind then asked for ‘those in favour’ to raise their hands and for ‘those against’ to raise their hands. Mr Jacobs states that to the best of his knowledge all the people who voted on the resolutions are Amangu people. I accept this evidence of Mr Jacobs for the purpose of this application.
22. The resolutions passed at the meeting on 11 March 2010 were as follows:

Resolution 20100311.1
The attendees at the meeting agree and confirm that in making decisions about matters and dealings arising in relation to the Amangu claim, there is no particular process of decision making for matters of this kind, under traditional law and customs that must be complied with by the claim group
Moved: Hilda Kickett
Seconded: Regina Richardson
For: 77
Against: 8
Abstained: 1

Resolution 20100311.2
The attendees at the meeting agree that this meeting is an appropriate forum to make decisions relating to the Amangu claim
Moved: Garry Ronan
Seconded: Jenny Banfield
For: 93
Against: 0
Abstained: 1

Resolution 20100311.3
The attendees at the meeting agree that any resolutions made at the meeting be made by way of vote to be decided by way of a show of hands. Receiving majority support will be considered as being affirmatively made
Moved: Ron Tolputt
Seconded: Graham Taylor
For: 92
Against: 0
Abstained: 0

Resolution 20100311.4
The meeting authorises, subject to verification by the nominated persons:

Frederick Taylor Rod Little Barry Dodd Ross Oakley
Ron Ronan Ruby McKinnon Clarrie Cameron Thomas Cameron
Malcolm Whitby Ron Tolputt Anita Farrell

to be the Applicant in respect of the Amangu claim.
Moved: Ruth Merson
Seconded: Wayne Warner
For: 93
Against: 1
Abstained: 0

23. The position thereby appears, on the face of it, to be that the replacement application was properly authorised by the Amangu claim group in accordance with the decision-making process agreed and adopted by the Amangu claim group for making decisions of this nature, as provided for by s 251B NTA.
24. The meeting was regularly convened. Extensive steps were taken to ensure that all persons falling within the claim group description were given notice of the meeting. I accept the meeting itself produced a good cross-section of claim members from different families. The subject matter of motions to be discussed was communicated by the notices referred to above. The motions put received either unanimous or near unanimous support. So far as the motion to replace the current applicants with the replacement applicants is concerned, there were 93 votes for and only 1 against that resolution.
25. As indicated earlier, the notice of motion was also supported by an affidavit of Sanna Nalder anthropologist, affirmed 7 September 2010. Ms Nalder has been employed by YMAC as an anthropologist since November 2007. A significant part of her work involves interviewing Aboriginal people and compiling genealogies. During the course of her employment she has considered research material conducted by other anthropologists engaged by YMAC regarding the Amangu people and has knowledge of Amangu genealogies and law and custom.
26. Ms Nalder says that she is informed by YMAC files, including research conducted by other anthropologists and believes that membership of the Amangu claim group is primarily reckoned by descent from the apical ancestors earlier described by Mr Jacobs.
27. Ms Nalder also says that she is informed by the Amangu genealogies and her contact with the Amangu claimants that all the members of the replacement applicant are members of the Amangu claim group. So far as attendance at the community meeting on 11 March 2010 is concerned, Ms Nalder said that she is informed by the Amangu genealogies and by the attendance list that I referred to above that families representing most of the apical ancestors and all the ancestors who have descendants actively involved in the Amangu native title claim were in attendance.
28. In particular, Ms Nalder notes that Wayne Warner, Betty Forsyth and Donna Ronan were present and did not vote against their removal as members of the applicant. She notes from genealogical research that Raymond Dann is descended from Jane Hunt. She also notes that there were others present at the community meeting descended from the same group. Ms Nalder said that from the genealogical research conducted she knows that Ross Oakley, Raymond Oakley and Eric Oakley share the same apical ancestors as Raymond Dann. She says therefore there was representation from the families descended from Jane Hunt at the meeting.
29. Ms Nalder also states that she is aware from genealogical research that Ron Ronan is descended from George Ronan and that there were others present at the community meeting who were descended from the same group. From her genealogical research conducted she knows that Garry Ronan, Robert Ronan, William Ronan and fifteen others share the same apical ancestors as Ron Ronan.
30. Ms Nalder states that at the 11 March 2010 community meeting she presented anthropological information to the members of the claim group present and explained that the current applicant only had representatives from 4 of the 11 apical ancestors. In light of that information the meeting decided to elect an applicant with a single representative from each of the apical ancestors. Thus the replacement applicant reflects the intention of the community to elect an applicant with a single representative from each of the apical ancestors.
31. Notwithstanding the community meeting and the resolutions then taken and the apparent purpose of the resolutions concerning the replacement ancestors described by Ms Nalder, at the hearing of the notice of motion on 11 November 2010, Mr Rod Little, one of the current applicants, sought to be heard through counsel on the application. Following some submissions about the entitlement of counsel to appear for one of the individual persons named as part of the current applicant, I eventually gave counsel leave to appear. Counsel also sought to refer to an affidavit, or at least a copy of the affidavit that Mr Little had apparently then recently made. Mr Jacobs, who appeared for the applicant on the notice of motion, had not at that point seen the affidavit or a copy of it. I allowed the affidavit to be read in a formal sense on the undertaking of counsel that the original would be filed. Counsel indicated that that would be done by the Melbourne solicitors acting for Mr Little as soon as practicable. It was eventually filed on 28 January 2011.
32. Mr Little’s affidavit raised two particular issues. One is to do with the entitlement of certain named applicants to membership of the replacement applicant. The other is to do with process.
33. Mr Little “opposes” the inclusion of Robert Ronan, Ross Oakley and Malcolm Whitby as members of the replacement applicant.
34. As to Mr Robert Ronan, Mr Little says he is not a descendent of apical ancestor George Ronan, contrary to the opinion of Ms Nalder to that effect. He produces some material from a Department of Native Welfare file to support his claim.
35. As to Mr Ross Oakley, Mr Little says he has conducted reviews of his copies of minutes of previous meetings and can find no record of any resolution being passed which permits him being included as part of the claimant group.
36. As to Mr Malcolm Whitby, the basis of his objection is that at a meeting held on 23 August 2008 it was resolved that Reginald Whitby, not Malcolm Whitby, be substituted for CW now deceased. He complains he has not been provided with any explanation or reason why this resolution was not actioned by YMAC.
37. I indicated to Mr Jacobs as counsel for the applicant that I would appreciate receiving a further affidavit which annexes the notice that was actually sent out to claim group members identified on the database which seemed not to have been annexed to the materials provided to the Court.
38. By further affidavit of Mr Jacobs filed 18 November 2010, Mr Jacobs states that while the notice sent out contained the words “Please see the attached agenda for more detail”, these words were incorrectly included as a result of using a standard word document template and the agenda was not in fact attached. Rather, the text in the notice was, as noted earlier, that the meeting was for the purpose of electing and authorising a new working group, to ensure the authorisation of the application (s 66B Native Title Act) and to receive updates on Amangu claim business.
39. Mr Jacobs says to the best of his knowledge and belief, YMAC received no complaints as a result of this administrative oversight and he is not aware of any claim member who received a notice who requested a copy of the agenda stated as being attached.
40. He says the primary purpose of the 11 March 2010 community meeting was for the community to provide names of the new applicant and there was no way of predicting which names would be nominated for election to the applicant before the meeting. Therefore, there could be no more information put into an agenda about the meeting than was given in the notice, namely, that the authorisation of the applicant would be considered, and so s 66B was specifically mentioned.
41. In the circumstances described above, I am satisfied that sufficient notice was given to all claimant group members of the agenda item that involved consideration of a replacement applicant. The background information, including Mr Little’s affidavit, indicates that the death of CW had occurred sometime earlier and that the need to replace him was well understood. The agenda item notified was “ensure the authorisation of the applicant (s 66B Native Title Act)”. This, in my view, and properly understood in context (including the reference to s 66B), referred to the need for the continuing authorisation of the claim group to be considered. The agenda then was intentionally open-ended. It was not necessarily limited to the replacement of only one person, namely the deceased CW. This is because it will often be difficult in advance of such a community meeting for a particular person or particular persons to be nominated. One may expect a claim group as large and widely dispersed as the Amangu claim group to wish to have the opportunity to canvas the authorisation of the applicant generally and to suggest a range of persons who might be authorised to act for the claim group in the future conduct of the proceeding. In this case, as Ms Nalder has indicated, there was an issue concerning the proper representation of all families. To put the matter shortly, I do not consider that the resolution of the community meeting held on 11 March 2010 was defective by failing to describe more amply or in greater detail the names of a particular person or names of particular persons who might be nominated as a replacement applicant or replacement applicants. The question of authorisation of the claim group was fairly and squarely raised as an agenda item in the notices.
42. In all of these factual circumstances, I am satisfied that the authorisation given was not only by appropriate notice to all relevant persons within the native title claim group, but was an authorisation given at the community meeting by a representative group of the persons who constitute the native title claim group in the Amangu claim. Unlike the position in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (Bolton), proper notification had been given to members of the claim group about a meeting and relevant agenda items, and the membership of the native title claim group by those who attended the meeting has been demonstrated. This was not a case, as in Bolton, of “asserted self-identification”. The evidence shows, particularly through the production of the attendance list and in the evidence of Mr Jacobs, that the persons who attended the community meeting were representative of various components of the native title claim group concerned. Indeed that was one of the reasons the resolution was so made.
43. That Mr Little now expresses some dissatisfaction with the way that YMAC provides administrative services to the claim group or that it had not explained to him to his satisfaction why Mr Malcolm Whitby had become nominated and approved at the community meeting to be one of the named applicants, is in my view, of no relevance to the authorisation issue.
44. Mr Little could have, as others who attended the meeting could have, raised any concerns about the identity of persons proposed to be in the replacement applicant group. The situation however is that a group of persons representative of the claim group who attended the meeting – in good numbers – made the resolutions that they did. It is the members of the claim group thus convened whose views are to be accepted. That there may be a few who do not share the majority view will not usually affect the validity of the group resolution: Butchulla People v State of Queensland [2006] FCA 1063; (2006) 154 FCR 233.
45. As to Mr Little’s complaints about what was transacted at earlier working group meetings or other community meetings concerning other aspects of the claim well prior to the community meeting on 11 March 2010, I simply do not consider them relevant to the business transacted at the community meeting on 11 March 2010. It is the authorisation given at the community meeting on 11 March 2010 that matters here.
46. So far as Mr Little’s objections to particular persons being members of the replacement applicant, to the extent that they rely on genealogical submissions they are matters that may be worked out, if necessary, at a final hearing of the claimant application. The genealogical opinion of Ms Nalder at this point is that all relevant replacement applicant members are appropriately connected with the named apical ancestors. That is sufficient for the matter, in my view, to proceed to a final hearing.
47. As I say, objections concerning other persons being members of the replacement applicant on grounds of process or procedure leading up to the meeting on 11 March 2010, are, in my view, weakly founded.
48. There is not of course any reason why members of the claim group more generally may not use whatever traditional and customary processes or other processes that are agreed by them, particularly in their dealings with YMAC, to convene appropriate additional community meetings should there be continuing concerns amongst the claim group concerning the entitlement of the replacement applicant or particular members of the replacement applicant to exercise the function of an applicant in this proceeding. Indeed, in my view, such internal claim questions are usually best left to the claim group as a whole to determine, rather than for the Court to deal with on an interlocutory basis. As I have indicated, should there be continuing questions going to anthropological issues and genealogical actions, no doubt they can be agitated at a final hearing.

CONCLUSION AND ORDERS

49. For these reasons I am satisfied that the notice of motion to replace the current applicant with the replacement applicant should be allowed. I will now make orders in terms of the minute of proposed orders filed on behalf of the applicant on 7 September 2010.

The Court orders that:

1. Frederick Taylor Senior, Rod Little, Barry Dodd, Ross Oakley, Rob Ronan, Ruby McKinnon, Clarrie Cameron, Thomas Cameron, Malcolm Whitby, Ron Tolputt and Anita Farrell (the replacement applicant) do jointly replace all of the persons currently comprising the applicant on the grounds that:

(a) CW is deceased;

(b) the current applicant group is no longer authorised by the claim group to make the application or to deal with matters arising in relation to it; and

(c) the replacement applicant is authorised by the claim group to make the application and deal with matters arising in relation to it.

2. The heading of the current application be amended by the removal of the words “Raymond Dann, Barry Dodd, Wayne Warner, Ron Ronan, Rob Ronan, Rod Little, Clarrie Cameron, Betty Forsyth, Donna Ronan and CW” from the title of the action and by the addition of the words “Frederick Taylor Senior, Rod Little, Barry Dodd, Ross Oakley, Rob Ronan, Ruby McKinnon, Clarrie Cameron, Thomas Cameron, Malcolm Whitby, Ron Tolputt and Anita Farrell” to the title of the action.
3. Service of this motion and supporting documentation on any person other than the first respondent and Mr Rod Little, by post to his usual address, be dispensed with, but the applicant notify the other respondents of the making of the order by email communication or post as soon as practicable.
   

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated: 14 February 2011