Case: Daniel v The State of Western Australia (2002) 194 ALR 278
Outcome: cited
Section 66B of the Act provides for a procedure for the replacement of the applicant ( Chapman on behalf of the Wakka Wakka People # 2 v State of Queensland [2007] FCA 597 per Kiefel J at [2]). Under subs 66B(1)(a)(i), members of a claim group who seek to replace an existing applicant must relevantly establish ( Daniel v The State of Western Australia (2002) 194 ALR 278 per French J at [17]) that: (1) There is a claimant application. (2) Each applicant for an order under s 66B is a member of the claim group. (3) The persons to be replaced are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. (4) The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising in relation to it. 16 As to the remaining criteria, s 251B of the Act governs when a person (or persons) is authorised by all of the persons in the claim group and applies in determining when a person is authorised for the purposes of s 66B ( Daniel at [14]). Authorisation may be in accordance with a process of decision-making according to traditional laws and customs (s 251B(a) of the Act). Where there is no such process, it may be in accordance with a process agreed and adopted by the claim group (s 251B(b) of the Act). 17 Whether there is authorisation for the purposes of s 66B in any given case is a question of fact. In the present case, the evidence is that there is no precise process or cultural precedent under the traditional laws and customs of the Njamal people that must be followed for decisions of the kind contemplated by s 66B of the Act or otherwise for authorising claim group members to represent the group as applicant. Decisions as to the authorisation or removal of applicants are not part of Njamal traditional law and culture. Instead, the Njamal people have agreed to and adopted a process of making decisions (s 251B(b) of the Act). Pursuant to that process, decisions are made by resolution or consensus at community meetings organised by the Pilbara Native Title Services ('PNTS'). All known Njamal people are included on a mailing list and invited by letter to attend such meetings. The mailing list has been compiled with the input of anthropologists who have been involved in researching the claims and genealogies. Notices are also sent to communities where Njamal people reside. Meetings have been called and held where families are represented and individuals or families with particular interest or authority in relation to the decisions being contemplated are present. Decisions at those meetings have been made by consensus and by way of formal resolutions. 18 Although it is not possible for every member of the claim group to attend each community meeting, the group regards itself as bound by the decisions of those who are present. Major decisions have been made over a number of years in this manner. At such meetings of the larger Njamal community decisions have been made to form a working group to deal with day to day claim group business and to participate in surveys in Njamal country. The Njamal people chosen at these meetings are not all members of the current claim group. 19 Community meetings have become the accepted way of making major decisions on matters such as the claim areas, authorisation of the applicant and major future act decisions. Where there is not a reasonably representative group of people at a community meeting or insufficient attendees, the persons present may decide that it is inappropriate for a decision to be made at that meeting. The resolutions at the meeting were in accordance with the decision-making process previously used and, I am informed, also used to authorise the current applicant. 20 The sole agenda items at the meeting were ' claim group description ' and ' replacement of the applicants '. Following discussion of each item, the members present resolved: &#8226; to amend the claim group description (the first resolution); &#8226; no longer to authorise the current applicant ' as a group ' to make the application in these proceedings or to deal with matters in relation to it; &#8226; to remove 11 of the 17 persons who currently comprise the applicant and to include three new persons as applicant (the second resolution); &#8226; to authorise the replacement applicant to be the applicant in these proceedings and to deal with matters related to the application in accordance with decisions of the Njamal native title claim group through community meetings; &#8226; to authorise the replacement applicant to bring an application in this Court to replace the current applicant and to authorise them to instruct PNTS to act for them, or to organise or appoint legal representatives to act for them, in relation to that application. 39 The withdrawal and conferring of authority for the purposes of a s 66B application must be shown to flow from the claim group ( Bolton at [44]). Once this is established, the actions of the claim group and the means by which it makes decisions is a matter for it. It is not for the Court to interfere with decisions reached in accordance with the Act. It is not for the Court to consider the wisdom of those decisions or whether, in this case, there is merit in Mr McPhee's concerns. It is for him to communicate those concerns, if he wishes to do so, to the other claimants and for the applicant, on receipt of instructions from the claim group, to act as authorised. Upon the making of the orders sought by the first motion, the terms of s 66B of the Act will be satisfied. The Court has a discretion as to whether it should exercise its power under s 66B (subs 66B(2) of the Act; Daniel at [18]). That discretion should be exercised to make the orders sought by the replacement applicant.