Case: Booth v State of Queensland [2003] FCA 418
Outcome: followed
Mr Preston for the Kabi Kabi #2 Applicant, in supporting the notice of motion to dismiss Kabi Kabi #3, submitted in summary as follows: &#8226; The Kabi Kabi #3 Application produces no evidence that the alleged decision-making process resulting in that native title determination application was a mandatory traditional process involving traditional laws and customs which needed to be followed. &#8226; In terms of s 251B of the Act , an agreed process of decision-making is applicable if there is no mandatory traditional process of decision-making under traditional laws and customs. Where a native title determination application is based upon an agreed process, the applicant must identify how the process was agreed upon, and how it was put into practice. &#8226; It is open to the Court to infer that the Kabi Kabi #3 Applicant cannot identify such a process in relation to that application, in that the Kabi Kabi #3 Applicant did not produce relevant evidence to the Court in response to the notice of motion to dismiss the application, and that it is also unlikely that any new material of relevance could be produced to the Tribunal. &#8226; There has been no consultation process in the case of Kabi Kabi #3 involving invitations, notice or discussions with people relevant to any native title claim concerning the Kabi Kabi people, and no evidence has been produced to establish eldership in relation to those people in Kabi Kabi #3 who assert eldership. Accordingly, the decision-making process is, on the Kabi Kabi #3 Applicant's own material, seriously defective to the point of being incurable. State of Queensland 18 Mr Prowse for the State of Queensland submitted: &#8226; there cannot be valid authorisation of both claims in Kabi Kabi #2 and Kabi Kabi #3 &#8226; the material filed by the Kabi Kabi #3 Applicant does not sufficiently address the authorisation issue &#8226; if the current situation continued, with competing claims, the view of the State was that more time and money would be wasted in fruitless interlocutory applications. Kabi Kabi #3 Applicant 19 Mr Poynton, for the Kabi Kabi #3 Applicant, opposed the dismissal application. In summary, his submissions were as follows: &#8226; it was accepted that the Kabi Kabi #3 claim had failed the registration test of the Tribunal on the basis of failure of correct authorisation &#8226; the Act was amended at the beginning of 2007 &#8226; as sworn by Ms Bernice Anning, solicitor for the Kabi Kabi #3 Applicant, in an affidavit of 2 May 2007, the Kabi Kabi #3 Applicant had been contacted by the Tribunal on the basis that, although Kabi Kabi #3 had failed the registration test on 31 August 2006, the changes to the Act meant that the Tribunal was required to test the application again, and had assigned a case manager to help with any questions &#8226; accordingly, it would be premature for the Court to "close the administrative window of opportunity" opened by the legislature and the Tribunal by dismissing the Kabi Kabi #3 Application &#8226; an alternative way forward would be for the Court to order an adjournment until later in 2007, to allow the Kabi Kabi #3 Applicant time to have their material prepared, submitted to the Tribunal, and be allowed to take advantage of the legislature's change of the law &#8226; it would be unfair to strike out the Kabi Kabi #3 Application, and not the Kabi Kabi #2 Application. 27 Third, as I have already noted, Ms MacDonald also deposed that a majority decision arrived at during a meeting held in accordance with Australian meeting rules and conventions conforms to the traditional values associated with Kabi Kabi decision meeting in appropriate conditions (cf similar comments of Mr Alexander Davidson in his affidavit of 11 October 2004 (para 11)). However in the absence of more precise evidence, I am not prepared to accept at this stage that majority vote is a method of decision-making in accordance with traditional Aboriginal law and custom in relation to the Kabi Kabi people. Mr Niblett in his report makes no reference to majority voting as conforming to traditional decision-making processes. Further, to paraphrase comments of Tamberlin J in similar circumstances in Booth v State of Queensland [2003] FCA 418 , there is no other evidence, oral or written, before me as to the constitution of the group or the basis on which it is claimed that a majority vote would be sufficient, or indeed as to who and how many persons are entitled to vote and precisely what is meant by the expression "majority vote" ( Booth [2003] FCA 418 at [11] ). 28 Fourth, if the authorisation process concerning the Kabi Kabi #3 claim was not in conformity with traditional law and customs, it is not clear to me on the evidence that the native title claim group agreed to and adopted any particular decision-making process in relation to authorising the Kabi Kabi #3 Applicant to make the Kabi Kabi #3 Application. I note and accept the submissions of Mr Rangiah for QSNTS in this regard concerning the lack of evidence or detail as to the authorisation process in that case. 29 Finally, I note that the submissions of Mr Poynton for the Kabi Kabi #3 Applicant in this matter are not that the application is authorised and in accordance with s 61 , but are confined to a request for more time to allow it to, in the words of Mr Poynton, take advantage of "an administrative window of opportunity" offered by the Tribunal in relation to testing the application. In my view this submission does not address the key issues before the Court in relation to the current notice of motion. In particular: &#8226; notwithstanding the formal offer by the Tribunal to test the application again, the applicant provides no explanation to this Court as to how or why, as a result of amendments to the Act , it is possible that the Tribunal may view the claim as authorised whereas previously it had not &#8226; no additional evidence was produced by the Kabi Kabi #3 Applicant to the Court in response to the notice of motion to have the Kabi Kabi #3 Application struck out demonstrating that the Kabi Kabi #3 Application was in fact authorised &#8226; the written submissions of QSNTS in relation to flaws in the alleged authorisation process in Kabi Kabi #3 have not been addressed by the Kabi Kabi #3 Applicant &#8226; I fail to understand how extra time allowed to the Kabi Kabi #3 Applicant in these circumstances will address a key issue raised by Mr Rangiah, namely that there are currently two applications allegedly authorised by Kabi Kabi people, covering a very similar area of land and involving eleven common apical ancestors, however both applications cannot be authorised, and either one or both of the applications must not be authorised in accordance with s 61(1) of the Act . 30 Mr Poynton has also submitted that it would be unfair to strike out the Kabi Kabi #3 Application and not the Kabi Kabi #2 Application. However in my view this submission is of little weight, as I note from the undertaking of Mr Preston on behalf of his client that the effect of striking-out the Kabi Kabi #3 Application is that the Kabi Kabi #2 Application will be discontinued. 31 It is unnecessary in these circumstances that I deal with O 20 r 2 Federal Court Rules . The Kabi Kabi #3 Application does not comply with s 61 of the Act and accordingly should be struck out pursuant to s 84C.