Case: Erica Deeral (on behalf of herself and the Gamaay Peoples) and others v Gordon Charlie and others [1997] FCA 1408
Outcome: cited
In this proceeding, Walmbaar Aboriginal Corporation ("Walmbaar") applies under ss 50(2) and 61 (1) of the Native Title Act 1993 (Cth) ("the Act") for a determination of the compensation payable under the Act in respect of acts which are said to have either extinguished or significantly impaired or otherwise affected the native title rights and interests of the Dingaal People determined by the Court on 8 December 1997 ( Erica Deeral (on behalf of herself and the Gamaay Peoples) and others v Gordon Charlie and others [1997] FCA 1408 per Beaumont J). That determination is described as the Hopevale determination as, by its terms, the Court determined the native title rights and interests subsisting in 13 clans of indigenous people including the Dingaal People in land and waters on the eastern side of Cape York surrounding the community of Hopevale. The land the subject of the determination is described in the Deed of Agreement filed in support of the application for the Hopevale determination under s 87(1) of the Act as the "land and waters of the Hopevale Deed of Grant in Trust ('the dogit land'), to the high water mark" as detailed on a map attached to the Deed. It seems to be common ground that the land and waters of the Hopevale determination fall within Lot 35 on Crown Plan BS 222. Walmbaar is a registered native title body corporate in relation to the Hopevale determination, for the purposes of the Act (ss 253 and 193 (2)(e)) and is the prescribed body corporate and agent for the Dingaal People for the purposes of ss 57(2) and 57 (3) of the Act and the Hopevale determination. The "Rules" of the Walmbaar Aboriginal Corporation contain these provisions. INTERPRETATION 2. In these Rules - ... "Common Law Holders" means each of the persons set out in attached schedule "A" provided such persons are, and only whilst they remain, a member of the Corporation. Those listed in the schedule are all adult persons who hold native title under Federal Court determination QG 174 of 1997 , in the case of Deeral v Charlie . "DINGAAL COUNTRY" is land, waters, sea and islands traditionally owned by the Dingaal people, in the vicinity of Cape Flattery in far north Queensland; in accordance with the custom and tradition of the Dingaal people. "DINGAAL CLAN" and "DINGAAL People" and "DINGAAL community" mean all persons born of a Dingaal father, or Aboriginal children adopted by a Dingaal father. A "Dinagaal father" is a male person of patrilineal descent of the Baru, Yoren or Charlie families. "DINGAAL Family" means Yoren, and/or Baru and/or Charlie families of Hope Vale and their patrilineal descendants. "DINGAAL Elders" means a member[s] who demonstrate a consistency of attachment to DINGAAL issues and country; who demonstrate leadership; have extensive cultural knowledge; have knowledge of appropriate cultural behaviours; are politically aware; command respect in the DINGAAL community; and have knowledge and communication skills required to liaise between the Dingaal Community and wider State and Federal authorities; and who is nominated by a Dingaal family and accepted by the Dingaal Community and all existing Dingaal Elders (if any). There shall be a register of Elders maintained by the Public Officer. ... OBJECTS 6. The objects for which the Corporation is established are: (1) (i) The principal object of the Corporation is to act as agent for the Dingaal people in obtaining, holding and managing DINGAAL country; and (ii) To act as the Prescribed Body Corporate through which DINGAAL people can meet their duties and responsibilities for their country. (2) (i) This Corporation is established for the purpose of being the subject of a determination under Sections 56 &amp; 57 of the Native Title Act . A purpose of this Corporation's existence is becoming a registered native title body corporate as set out under the Native Title Act (1993) and its Regulations. (ii) This Corporation shall act as agent of the common law holders in respect of matters relating to the native title; and (iii) Manage the native title rights and interests of the common law holders as authorised by the common law holders and perform any other functions in relation to the native title rights and interests as directed by the common law holders. ... (3) To secure legal tenure over DINGAAL country. (4) To form a Committee which can: (i) Service areas where Native title and Aboriginal tenure may be obtained; (ii) Conserve and manage Dingaal country. POWERS The Corporation shall, subject to the provisions of the Act, have power to do all such lawful things as may seem to the Committee necessary to carry out the objects of the Corporation. ... (1) In relation to the performance of its functions as a Prescribed Body Corporate, this Corporation shall make decisions regarding native title by notifying all common law holders of decisions to be made and after one week notice, convene a meeting of common law holders and obtain the consent of 75% of the common law holders in relation to the performance of its functions and changing of the Rules. (2) Consent of 75% of the common law holders will constitute the consent of the Dingaal Clan and this Corporation. [emphasis adopted by the Rules document] MEMBERSHIP (1) Membership of the Corporation shall be open to adult Aboriginal persons who are DINGAAL people as noted on a genealogical record kept by the Public Officer. A register of members for the time being shall be kept by the Public Officer. (2) The genealogical record of DINGAAL descendants kept by the Public Officer shall be certified by at least two (2) registered DINGAAL Elders and may only be amended by the Committee with the written consent of two registered DINGAAL Elders. The Elders Group shall confirm certifications of amendments to the genealogical record. If confirmation is not forthcoming, amendments shall be null and void. The Elders group shall confirm or deny certification within 30 days of receiving an application. (3) A member shall cease to be a member: (i) if that member shall die; (ii) if that member shall by notice in writing resign from membership. (4) From the date of incorporation the members on attached Schedule A are members of the corporation. ... COMMITTEE (1) Subject always to the control of the Corporation in General Meeting, the Committee shall manage and control the affairs of the Corporation in accordance with these Rules and with the Act [ Aboriginal Councils and Associations Act 1976 ] and for that purpose may exercise the powers of the Corporation as if they had been expressly conferred on the committee by a general meeting of the Corporation. (2) The members of the Committee (minimum five members) shall be elected at the first general meeting of the Corporation and ... thereafter at each annual general meeting and shall be eligible for re-election ... (3) A member of the Committee shall cease to hold office (i) if he dies, or (ii) ceases to be a member of the Corporation by resigning from the Corporation, or (iii) if he resigns his office, or (iv) under s.73 of the Act an administrator is appointed, or (v) if by reason of infirmity, absence or any other reason the Corporation is of the opinion that he has ceased to be an effective member of the Committee. SCHEDULE "A" WALMBAAR ABORIGINAL CORPORATION list of members and adult common law holders Rodney Yoren Kevin Yoren Mervin Yoren Belinda Yoren Margaret Gregory Vernon Yoren Elaine McGreen Susan Bally Christine Yoren Vernon (Ned) Yoren Alwyn Yoren Jacklyn Yoren Gary Yoren Eugene Yoren Roy Yoren Warren Yoren Grace Yoren Norris Baru Phillip Baru Amanda Baru Elaine Baru Margaret Baru Pam Baru Henry Baru Kenny Baru Rita Harrigan Phyllis Greenway Gordon Charlie Patricia Charlie Stanley Charlie Dan Charlie Louie Charlie John Charlie Allan Charlie These individuals listed in Schedule A are the leading members of the Baru, Yoren and Charlie families. Each of the indigenous respondents other than Brian Cobus is a member of Walmbaar. On 25 February 2002, Beaumont J made a further order in the Hopevale determination proceeding directing, by Order 5, that Walmbaar "is the prescribed body corporate which, after becoming a registered native title body corporate, will perform the functions mentioned in s 57(3) of the Native Title Act 1993 for the Dingaal Clan". The reason for the long delay between that order and the Hopevale determination of 8 December 1997 is not clear. Differences of opinion emerged between Gordon Charlie and others on the one hand and members of the Baru and Yoren families on the other as to whether the Dingaal People comprise descent members of the Baru and Yoren families notwithstanding the definitional matters contained in the Rules of Walmbaar ([16], Interpretation). For example, a notice convening a meeting for 21 June 2005 of "all Dingaalwarra and Biddi-Baru members" to be held at "Gungarde Office" in Cooktown was issued to Walmbaar members signed by Gordon Charlie at which meeting a resolution was to be proposed that Phillip Baru, Elaine McGreen and all Baru and Yoren members be expelled from Walmbaar and that "all Yoren and Baru descent members who are members of [Walmbaar] resign [their membership] as they belong to another clan and are not Dingaal clan descendents". The notice contained a pro forma notice of resignation and a commentary that Baru and Yoren family members are members of a separate clan called the Biddi-Baru clan. The meeting did not take place. Neither Phillip Baru nor Elaine McGreen nor any member of the Baru and Yoren families resigned their membership of Walmbaar. Consistent with the notion that Baru and Yoren family members form part of a different clan, steps were taken in 2005 to incorporate under the ACA Act a corporation described as Biddi-Baru Aboriginal Corporation which by rule 2 of its Rules defines native title holders in respect of relevant land as members of the Baru and Yoren families from the Cape Flattery area. Mr Testro, a legal officer employed by the Land Council, deposes in his affidavit that members of the Baru and Yoren families did not establish the Biddi-Baru Corporation; they continue to assert membership of Walmbaar on the footing that they are members of the Dingaal clan as recited in the Rules of Walmbaar; and they are seeking to establish who caused the new corporation to be formed on that footing.