Dingaal Tribe v Queensland and Ors (with Corrigendum dated 7 October 2003) [2003] FCA 999 (17 September 2003)

Last Updated: 9 October 2003

FEDERAL COURT OF AUSTRALIA

Dingaal Tribe v State of Queensland and Ors

[2003] FCA 999

CORRIGENDUM

DINGAAL TRIBE v STATE OF QUEENSLAND AND OTHERS

QG 6004 OF 1998

COOPER J

CAIRNS

17 SEPTEMBER 2003 (CORRIGENDUM 7 OCTOBER 2003)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG6004 OF 1998

BETWEEN:	DINGAAL TRIBE APPLICANT
AND:	STATE OF QUEENSLAND AND OTHERS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 SEPTEMBER 2003 (CORRIGENDUM 7 OCTOBER 2003)
WHERE MADE:	CAIRNS

1 In the short minutes of order, order 5 line 3, delete `O 6' and replace with `Order 7'.

2 In paragraph 1 of the reasons, line 2, add the word `application' after the word `determination', to read `native title determination application'.

3 In paragraph 6 of the reasons, line 1, delete `Daniels on behalf of the Ungama People and Others, [2000] FCA 1147' and replace with `Daniel v State of Western Australia [2002] FCA 1147'.

4 In paragraph 19 of the reasons, line 2, delete `Ms Demal' and replace with `Ms Deemal'.

5 In the appearances section at the end of the judgment, delete all appearances, and replace with the following:

`Solicitors for Gordon Charlie and Jonathon Charlie:	Nathan Lawyers
Counsel for Gary Yoren, Ned Yoren, Elaine Baru and Louis Charlie:	S Phillips
Solicitors for Gary Yoren, Ned Yoren, Elaine Baru and Louis Charlie:	Morrow Petersen
Counsel for State of Queensland:	Crown Law
Solicitor for Cape York Land Council:	Cape York Land Council
Solicitor for Cape Flattery Silica Mines:	Gore and Associates
Solicitor for the Commonwealth:	Australian Government Solicitor
Date of Hearing:	17 September 2003
Date of Judgment:	17 September 2003'

I certify that the preceding five (5) paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 7 October 2003

FEDERAL COURT OF AUSTRALIA

Dingaal Tribe v State of Queensland and Ors

[2003] FCA 999

DINGAAL TRIBE v STATE OF QUEENSLAND AND OTHERS

QG 6004 OF 1998

COOPER J

CAIRNS

17 SEPTEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG6004 OF 1998

BETWEEN:	DINGAAL TRIBE APPLICANT
AND:	STATE OF QUEENSLAND AND OTHERS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 SEPTEMBER 2003
WHERE MADE:	CAIRNS

THE COURT ORDERS THAT:

1. Pursuant to s 66B of the Native Title Act 1993 (Cth), Gary Yoren, Ned Yoren and Elaine Baru replace Gordon Charlie and Jonathon Charlie as the applicants in native title determination application QG6004 of 1998.

2. Pursuant to s 64 of the Native Title Act 1993 (Cth), O 78 r 7 and O 13 r 2 of the Federal Court Rules, Gary Yoren, Ned Yoren and Elaine Baru be given leave to amend the native title claimant application in the form exhibited to the Court.

3. Within fourteen days Cape York Land Council Aboriginal Corporation file at the Federal Court Registry a notice of change of address for service and contact details on behalf of the new applicants in the determination application as provided for in O 78 r 41 of the Federal Court Rules.

4. Within fourteen days Gordon Charlie and Jonathon Charlie and any other person assisting them with native title determination application QG6004 of 1998 provide the files and documents in relation to the determination application to Cape York Land Council Aboriginal Corporation.

5. The notice of motion filed 9 July 2003 by Peter Gore and Associates on behalf of a number of persons seeking to be joined as parties to QG6004 of 1998 be stood over for further directions to the date given in O 6.

6. The applicants file and serve an Action Implementation Plan addressing each of the matters specified in the pro forma document made available to the applicants today, by 30 November 2003.

7. That the matter be adjourned for further directions to 9.00 am on 28 April 2004 at Cairns.

8. The parties have liberty to apply on seven clear days notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG6004 OF 1998

BETWEEN:	DINGAAL TRIBE APPLICANT
AND:	STATE OF QUEENSLAND AND OTHERS RESPONDENT

JUDGE:	COOPER J
DATE:	17 SEPTEMBER 2003
PLACE:	CAIRNS

REASONS FOR JUDGMENT

6 On 15 July 1994, Gordon Charlie, on behalf of the Dingaal tribe, lodged a native title determination with the National Native Title Tribunal (`the NNTT') under the Native Title Act of 1993 (Cth) (`the old Act'). Thereafter, additions and amendments were made to the claim, including the addition of Jonathon Charlie as a joint applicant on 24 September 1996.

7 On 30 September 1998, the old Act was amended and the new Act came into operation. At that time, Gordon Charlie and Jonathon Charlie were entered in the Register of Native Title Claims (`the register') under the old Act, as the claimants of the relevant native title claim, on behalf of the sixty persons identified as the persons claiming native title in the lands and waters specified in the register.

8 In consequence, for the purposes of the new Act, Gordon Charlie and Jonathon Charlie became the `registered native title claimant' in respect of the lands and waters specified in the register. The `registered native title claimant' is the person or persons whose names appears in the entry in the register as the applicant in relation to a claim to hold native title in relation to the land and waters specified in the register. See Table A, Item 25, of the transitional provisions and s 253 of the new Act. Additionally, the application existing on 30 September 1998, was treated for the purposes of the new Act, as one having been made to the Federal Court of Australia under s 61(1) of the new Act. See Table A, Item 6, table case 3 of the transitional provisions of the new Act.

9 The effect of the transitional provisions in respect of Gordon Charlie and Jonathon Charlie, was that they became, for the purposes of the new Act, applicants authorised to maintain the claim and make decisions in relation to the issues relating to it on behalf of the native title claim group, in respect of which the claim had been made as recorded in the register.

10 That means, for example, that Gordon Charlie and Jonathon Charlie, could, as registered native title claimants, exercise any rights to be notified and heard in respect of approved exploration acts. See, for example, s 26A(a)(ii). It also meant that for the purposes of s 62A of the new Act, as applicant to a claimant application, they had power to deal with all matters arising under the new Act, in relation to the application.

11 As French J made clear in Daniels on behalf of the Ungama People and Others, [2000] FCA 1147, the new Act was structured on the basis of applicants of claimant applications being authorised by members of the claim group to make the claim, and thereafter being subject to the ongoing scrutiny of the members of the claim group in respect of the manner of the exercise of that authority.

12 Section 66B of the new Act, which provides for removal of a current applicant of a claimant application, acknowledges that such authority may be withdrawn and vested in another or others in accordance with the provisions of s 66B of the new Act. See Daniels at pars [11] to [17] inclusive.

13 It is not necessary, in order to prove that the decision-making processes required to be satisfied have been followed, to prove the making of individual decisions by all or most of the members of the claim group. Rather, it is sufficient to prove that the body making the decision was authorised to make decisions binding on the members of the claim group and that that body authorised the application under section 66B. See Daniels at par [18]; Moran v Minister for Land and Water Conservation for New South Wales [1999] FCA 1637 at par  [34]; Duren v Kiama Council [2001] FCA 1363 at par  [5]; Martin v The Native Title Registrar, [2001] FCA 16 at par  [43] and following.

14 Upon the commencement of the new Act, Gordon Charlie and Jonathon Charlie were taken by force of the transitional provisions, as applicants authorised to continue to exercise the powers of an applicant under the new Act, and to continue to have the authority of the claim group. However, they became subject to the supervision of the claim group in respect of their conduct of the claim then entered in the claims register.

15 For the purposes of s 66B(1) of the new Act, they were the `current applicants' liable to be replaced by this Court upon an application under the section if the continuing authority was withdrawn in the manner contemplated by the section. It follows, and I am satisfied, that this Court has power under s 66B of the new Act to make orders replacing Gordon Charlie and Jonathon Charlie as the current applicants in application QG6004 of 1998, if the circumstances required by s 66B are made out, and if I am satisfied that in all of the circumstances, in the proper exercise of my discretion, an order ought to be made.

16 By notice of motion filed on 30 June 2003, Gary Yoren, Ned Yoren, Elaine Baru, and Louis Charlie, applied pursuant to s 66B of the new Act for an order that they replace Gordon Charlie and Jonathon Charlie as the current applicants, and thereafter that they, as claimants, deal with all matters arising in relation to the claim.

17 The ground relied upon is that the current applicants are no longer authorised by the claim group to make the application and to deal with the matters arising in relation to it. The applicants on the notice of motion rely for their authority to bring this application and to be appointed as the current applicants in lieu of Gordon Charlie and Jonathon Charlie, on certain resolutions passed at a meeting held at Hopevale on 14 April 2003.

18 The application is opposed by Gordon Charlie. He relies, in support of his opposition, on affidavit material of himself, Henry Deeral Senior, Stanley Charlie, Ruth Schaefer, Allan Charlie, Ken Baru, Gertrude Deeral and Clive Williams. This material is objected to on the basis that it is irrelevant, argumentative, and does not address the relevant criteria contained in s 66B of the new Act, or address the criteria specified by O'Loughlin J in Ward v Northern Territory [2002] FCA 171 at par  [24], as being relevant to the proper exercise of the discretion under s 66B, to make an order replacing a current applicant.

19 The principal contention of Gordon Charlie is that under the traditional law and customs of the Dingaal people, he is the only person entitled, and thereby authorised, to make the claim for native title on behalf of the claim group, and that no meeting, however constituted, can by any process remove that authority. It is inherent in his position that no meeting can make any decision authorising any other person to make a claim, or an application under s 66B, without his attendance at the meeting, and without his consenting to his own replacement in favour of a person or persons of whom he approves.

20 As he was neither present at the meeting on 14 April 2003, nor consents to the appointment of the applicants in place of himself and Jonathon Charlie, his position is that under the traditional law and customs which bind the claim group, the meeting and resolutions passed at it were ineffective to withdraw his authority to remain and act as the current applicant.

21 The material before the Court indicates that Gordon Charlie set out his objections in writing to the proposed meeting at Hopevale, and demanded that the meeting be adjourned to a later date in Cairns when he was able to attend, and that no decisions be taken which purported to terminate his authority to act. This material was read to those attending the meeting at the commencement of the proceedings on 14 April 2003. I am satisfied that those attending were fully appraised of his position, being the position which he now contends for, and of his wishes as to what should occur at the meeting of 14 April 2003. Those attending the meeting voted unanimously to continue with the meeting and to vote on the resolutions of which notice had been given, notwithstanding the objections of Gordon Charlie. Such conduct is totally inconsistent with the existence of a traditional law and custom acknowledged by, and binding upon the claim group, in the terms contended for by Gordon Charlie.

22 For the purposes of this application, I am not prepared to find there exists any traditional law or custom binding on the claim group, preventing them from terminating the authority of Gordon Charlie and Jonathon Charlie to continue to act as applicants on the claim, and to authorise other persons to act in their stead, and to bring an application under s 66B of the new Act.

23 Gordon Charlie also contends that the interests of the Charlie sub-group were not sufficiently represented at the meeting or in the resolutions passed, for those resolutions to be given effect to by this Court. For reasons which I set out later, I do not regard this as an objection of substance.

24 The applicants, on the notice of motion, rely upon the affidavits of Ms Fanton, Mr Besley and Ms Demel, together with the affidavits of the applicants on the notice of motion, as satisfying the requirements of s 66B and addressing the relevant criteria considered by O'Loughlin J in Ward. Save in respect of the authority of the meeting under traditional law and custom to make decisions affecting Gordon Charlie's authority to maintain the application, the reasonableness of the conduct of the Cape York Council to provide Gordon Charlie and his associates with satisfactory transport to the meeting, and, whether certain persons voted or abstained from voting at the meeting, the contents of the affidavits and the documents exhibited thereto, were not the subject of challenge.

25 I am satisfied that:

(a) notice of the meeting, including a full agenda with clear explanatory material, was given, directly or indirectly, to all existing members of the claim group, or potential members of the claim group, and to the community generally, by delivery of notices and written documents, notices placed on notice boards, advertisements in the press and by word of mouth;

(b) a sufficient period of notice of the meeting was given and that the subject matter of the meeting was fully disclosed and explained in the notice and accompanying documents;

(c) adequate transport arrangements or assistance to obtain transport were made to enable persons ordinarily resident outside Hopevale to attend the meeting, if they required necessary assistance to do so, and if they chose to attend;

(d) reasonable offers of transport and accommodation for Gordon Charlie and his associates to attend the meeting in Hopevale on 14 April 2003, were made by the Cape York Land Council. Those offers were not availed of by Gordon Charlie. I reject any suggestion that the Land Council took any active or passive position to prevent Gordon Charlie from attending and participating in the meeting.

26 In the materials before the Court in support of the applicants on the notice of motion, are reports by Mr Graham Fletcher, a member of the NNTT, and Dr Fiona Powell, an anthropologist. Both persons attended the meeting, Mr Fletcher acting as co-chair of it. Both confirmed the veracity of the minutes of the meeting. Accordingly, I find that the minutes are a full and correct record of the proceedings, recording the terms of each of the resolutions put to the meeting in accordance with the notice of business which had previously been circulated, and the voting on each resolution.

27 The minutes record that each resolution after discussion, some of which discussion was conducted in private session by members of the claim group to the exclusion of non-claim group members, was put and passed unanimously by those present.

28 Gordon Charlie relies upon affidavit material from Allan Charlie, Ken Baru, Gertrude Deeral, Henry Deeral and Stanley Charlie and a statement from Henry Deeral Senior, that they did not support the resolution and did not understand the proceedings, and wish to retain Gordon Charlie as the current applicant in application QG6004 of 1998.

29 The majority of these affidavits are in a pro forma form. Some of the deponents did not attend the meeting, and their failure to do so is not explained. Those that did attend, gave no public expression to the views which they now express, nor did they vote against any resolution. Whether or not Henry Deeral Senior was or was not entitled to vote as a member of the claim group, and whether he did or did not vote in favour of the resolution, the minutes record his involvement in the proceedings on 14 April 2003.

30 On any fair reading of the minutes, his participation in the proceedings is inconsistent with the material now produced in opposition to the notice of motion, as representing his true wishes in respect of the matter. Counsel on behalf of Gordon Charlie referred the Court to parts of the minutes of the meeting which he submitted indicated that:

(a) those present did not understand what was happening;

(b) the proceedings did not involve a sufficient participation of the Charlie clan interests due to the absence from time to time of Louis Charlie;

(c) the proceedings did not accord to Gordon Charlie the deference due to him under Dingaal traditional law and customs;

(d) those attending thought that the current applicants would continue to be applicants;

(e) those present took into account irrelevant considerations in making the ultimate decision to replace Gordon Charlie and Jonathon Charlie as the current applicants.

31 The decisions of the meeting are not to be construed as administrative decisions subject to judicial review. The minutes reveal aspects of the proceedings and record some of the interventions made at the meeting, some of which led to the passage of the final resolution. No fair reading of the minutes as a whole would give cause for concern that the final resolutions were other than the considered decisions of those attending the meeting, after a process of discussion and consultation.

32 Louis Charlie accepted the nomination of the meeting to be named as a new approved applicant in lieu of Gordon Charlie and Jonathon Charlie. Having seen Louis Charlie in the witness box, I am satisfied that he understood and affirmed the contents of his affidavit of 14 April 2003, and understood the nature of the proceedings on 14 April 2003, the purpose of them and the consequences of agreeing to become an applicant with others to the application.

33 I am further satisfied that in accepting the nomination, Louis Charlie was of the belief that he was authorised by the Charlie clan to represent their interests in respect of the matters arising in relation to the land claim, and there is nothing in the material would persuade me that he was erroneous in that belief.

34 I am also satisfied that those attending the meeting understood, as was the case, that Gordon Charlie and Jonathon Charlie remain members of the claim group; that they continue to enjoy in respect of the land and waters, the subject of the claim, such rights, duties and privileges as were accorded to them under traditional law and custom, acknowledged and practised by the Dingaal people; and further, that they could participate in the ongoing consultation processes agreed at the meeting in respect of the future conduct of the claim. That is, they fully intended that Gordon Charlie and Jonathon Charlie would be part of, and entitled to participate in, the future conduct of the claim as members of the claim group. In those circumstances, those present at the meeting on 14 April 2003, did not fail to consider the position of Gordon Charlie, or the Charlie sub-group, as part of the Dingaal people who enjoyed rights and interests in respect of the land and waters the subject of the claim.

35 There is no acceptable evidence that there exists any traditional law and custom of the Dingaal people, providing a process for removing the present current applicants in application QG6004 of 2003 and authorising other members of the claim group to conduct the claim application in their stead. Indeed, as I have stated above, the conduct of those attending the meeting, in continuing with the meeting over the objections of Gordon Charlie, indicates that no such traditional law or custom exists.

36 Dr Powell in her report expressed her expert opinion that the meeting was conducted in accordance with contemporary Aboriginal law and custom which is based on traditional ways and evolving contemporary practices, such practices being evident in the conduct of those attending the meeting. I am satisfied, on the basis of Dr Powell's report, that the persons attending the meeting were authorised under such contemporary Aboriginal law and practice, to represent and speak for and act on behalf of the Dingaal people, who were members of the claim group, and that those who spoke and acted on behalf of each three subgroups were authorised to do so.

37 Even without the evidence of Dr Powell, I am satisfied on the balance of probabilities that the extent and nature of the notice of meeting, the agenda and the explanatory memoranda, were such that all members of the claim group had notice of the meeting and notice that it was the business of the meeting to consider resolutions which were intended to affect and bind them as members of the claim group. I am satisfied that those who did not attend, for whatever reason, knew and accepted that the question of the authority and replacement of Gordon Charlie and Jonathon Charlie, as the current applicants in respect of the native title claim, would be decided by those attending the meeting in a way which would bind the claim group as a whole, and accepted that process.

38 I am satisfied that the applicants are qualified to be appointed in terms of s 66B of the new Act as applicants, in lieu of Gordon Charlie and Jonathon Charlie. I find that the applicants were authorised at the meeting of 14 April 2003, within the meaning of s 251B(b) of the new Act to

(a) make the application;

(b) be appointed as applicants on behalf of the claim group, in lieu of the present applicants, to make claim Q6004 of 1998 and to deal with matters arising in relation to it.

39 I find that the authority of Gordon Charlie and Jonathon Charlie to continue to act as applicants on claim Q6004 of 1998 was withdrawn by resolution of the meeting of the claim group on 14 April 2003, in accordance with the resolution which satisfied s 251B(b) of the new Act.

40 I find that each of the requirements of s 66B of the new Act has been satisfied by the applicants, and that they are entitled to the orders sought in par 1 of the notice of motion, and there will be orders accordingly.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 25 September 2003

Solicitors for Dingaal Tribe:	Nathan Lawyers
Counsel for Gary Yoren, Ned Yoren, Elaine Baru and Louis Charlie:	S Phillips
Counsel for State of Queensland:	Crown Law
Solicitor for Cape York Land Council:	Cape York Land Council
Solicitor for Cape Flattery Silica Mines:	Gore and Associates
Solicitor for the Commonwealth:	Australian Government Solicitor
Date of Hearing:	17 September 2003
Date of Judgment:	17 September 2003