Case: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Outcome: considered
cases where an applicant claims that he or she was authorised at a meeting of members of a native title claim group, it will often be necessary to consider the notice given of the meeting in order to determine if all members of the claim group were given a reasonable opportunity to participate in the decision-making process. In the context of an application under s 66B of the NTA, French J in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 said (at [45]): In relation to the present motions I regret to say that the evidence and the processes adopted were not adequate to meet the conditions necessary for an order under s 66B. For each of the applications there is a defined native title claim group which is set out earlier in these reasons. The connection between those who attended the various meetings referred to and the respective native title claim groups was not established either in respect of notification nor, more importantly, in respect of attendance. The native title claim groups are defined in each case by reference to apical ancestors and biological descendants of those persons and persons adopted by them. The advertisements and notices did not refer to the relevant native title claim groups except by use of the generic title of the applications in question. The membership of the native title claim group by those who attended each meeting was not demonstrated. Rather it was reported as an asserted self-identification. Mrs Morich made some statements from the bar table doubting the representativeness of those who attended at the Southern Noongar meeting. Her statements might be right or wrong. They were not evidence. But my inability to make any judgment about them illustrates the inadequacy of the evidence as it presently stands for the purposes of a s 66B application. And even if it be accepted that each of the members who attended each of the meetings was a member of the relevant native title claim group, it is not established that they were in any sense representative of the various components of the native title claim group concerned. I turn now to apply the relevant legal principles to the facts of this case. Native title claim group A native title claim group consists of all those persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. The evidence in this case leads me to the conclusion that the Brown Family Group is a sub-group or sub-set of a native title claim group. The Brown Family Group, as defined in the original application, consisted of 22 persons, some of whom are deceased. Twelve or thirteen of the persons, including the applicant, are also listed as claimants or antecedents in the AM-Y claim group. The applicant is the daughter of Ms Jessie Brown, a person who, with her descendants, is named as a member of the AM-Y claim group. The persons named in the original application as part of the Brown Family Group included Mr Billy Brown, Ms Ida Brown, Ms Nellie Brown and Mr Johnny Wongan. The Brown Family Group, as defined in the amended application, consists of 22 persons and their descendants, but the four persons previously named have been removed and replaced by Mr Johnny Fatt, Ms Eva Fatt, Ms Beverly Fatt and Mr Ronald Fatt. In Attachment S in the amended application, the applicant provides an explanation for the changes in the composition of the Brown Family Group. She states (among other things) that Ms Nellie Brown has been excluded "as one of her granddaughters, Ms Maureen Williams, was on the AM-Y governing committee and did not want to be part of the Brown Family Group". She states that Ms Edna Williams is Ms Nellie Brown's daughter. She also states that Mr Johnny Fatt, Ms Eva Fatt, Ms Beverly Fatt and Mr Ronald Fatt are children of Ms Nellie Brown and that they have agreed to be members of the Brown Family Group. The AM-Y native title claim group is defined in the application made by that group as "those people (now living) who hold in common the body of traditional laws and customs governing the area the subject of the claim". Three groupings of persons are alleged to be members of the claim group. For present purposes, only part of the first group is relevant. The following sets of siblings, together with all their descendants are members of the native title claim group; ... 1.6 Hazel Brown, Ricky Brown and Martha Edwards; 1.7 Edna Williams, Johnny Fatt, Eva Fatt, Beverly Fatt and Ronald Fatt. 1.8 Kelly Tjutatja Brown, Tommy Brown, Henry Brown, Jessie Brown and Billy Nungki Brown; ... 1.14 David Brown, Bulla Brown, Annabel Lang, Ida Brown, Lucy Brown and Linda Brown. The Brown Family Group, as defined in the amended application, includes all of the persons in para 1.7 above, other than Ms Edna Williams, all of the persons in para 1.8 above, other than Mr Billy Nungki Brown, and, all of the persons in para 1.4 (assuming, as appears to be the case, Ms Annabel Brown and Ms Annabel Lang are the same person), other than Ms Ida Brown. Mr Billy Brown and Ms Ida Brown are part of the Brown Family Group as defined in the original application. Secondly, the applicant asserts that she was authorised by a meeting of the Brown Family Group on 30 May 2008. That was after the original application had been filed and before the amended application was filed. There are a number of reasons why it must be concluded that the events at the meeting held on 30 May 2008 did not give rise to a valid and effective authorisation. First, none of Messrs David Brown, Bobby and Sammy Brown and Sandy Brian Buzzacott were given notice of the meeting and none of them authorise the applicant to make the application or deal with matters arising in relation to it. They, or at least some of them, appear to be part of the Brown Family Group and the failure to give them notice of the meeting is fatal to the applicant's claim that she has been authorised to make the application and deal with matters arising in relation to it. Even if she could overcome these difficulties, she faces other obstacles in the way of establishing a valid authorisation. There is no evidence that any advertisement or notice was given in respect of the meeting held on 30 May 2008. Furthermore, as in Bolton , the connection between those who attended the meeting referred to and the native title claim group is not established in respect of attendance. The applicant called another meeting of the Brown Family Group on 8 November 2008. That meeting was advertised in the "Coober Pedy Regional Times". The advertisement was in the following terms: GENERAL MEETING BROWN FAMILY GROUP GENERAL MEETING Will be held on Saturday. November 8, 2008 2pm at Lot 60 Chadwick Street COOBER PEDY For more information phone 86725196 In my opinion, this advertisement was deficient in terms of giving all members of the Brown Family Group notice of the meeting because it did not sufficiently identify the alleged native title claim group such that a person reading the advertisement could determine if he or she was, or may be, a member of the Brown Family Group. The applicant said that in addition to the advertisement, she sent out 50 letters to "Bfg claimants members" of the intention to hold a general meeting on 8 November 2008. However, the identities of the addressees were not established, and copies of the letters were not put before the Court.