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Federal Court of Australia (Greenwood J)
31 October 2006
Native Title – amending native title claim – authorisation
The applicant, Gordon Charlie, sought an interim injunction in the Federal Court to stop the respondent, Cape York Land Council (‘CYLC’), from holding a meeting to vary the Dingaal Native Title Application 6004/98 (‘the claim’). The application was heard in the morning of the day the meeting was to take place.
The applicant’s dispute with CYLC arose from proposed changes to the claim. The applicant is an elder of the Dingaal people. Until 14 April 2003, the applicant was one of a number of Applicants on behalf of the Dingaal people for the claim. On 14 April 2003, the applicant’s authority to act for the Dingaal people in relation to the application was removed by claim group members. The Federal Court affirmed the decision by replacing the applicant’s name with the replacement applicants authorised by the claim group.
In substance, the applicant brought this action as a representative of the Brim people, a sub-group of the Dingaal people, who have not been recognised as members of the claim group. The applicant argued that by failing to recognise the Brims as part of the claim group, the CYLC had failed to fulfil its ‘facilitation and assistance function’ imposed by sections 203B(1)(a) and 203BB of the Native Title Act 1993 (Cth).
It was argued that CYLC failed to have regard to the interests of the Dingaal claim group; failed to be satisfied that the group consented to any general course of action; failed to promote the satisfactory representation of native title holders; failed to maintain a process promoting fair consultation; and failed to assist Dingaal claim group members and Brim sub-group members in consultations, negotiations and proceedings in relation to the Native Title Application.
Section 203B relevantly provides:
(1) A representative body has the following functions:
(a) the facilitation and assistance functions referred to in section 203BB;
Section 203BB relevantly provides:
(1) The facilitation and assistance functions of a representative body are:
(a) to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and
(b) to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:
(i) native title applications;
(ii) future acts;
(iii) indigenous land use agreements or other agreements in relation to native title;
(iv) rights of access conferred under this Act or otherwise;
(v) any other matters relating to native title or to the operation of this Act.
Section 203BC relevantly provides:
(1) In performing its facilitation and assistance functions in relation to any matter, a representative body must:
(a) consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and
(b) if the matter involves the representative body representing such bodies corporate, native title holders or persons be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.
Consent of native title holders etc.
(2) For the purposes of paragraph (1)(b), a native title holder or a person who may hold native title is taken to have consented to action if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind-the consent was given in accordance with that process; or
(b) where there is no such process of decision-making-the consent was given in accordance with a process of decision-making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind.
Section 203BJ relevantly provides:
In addition to the functions referred to in sections 203BB to 203BI, a representative body must:
…
(b) as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body.
1. The balance of convenience lies in favour of allowing the meeting to proceed. The CYLC has incurred considerable cost in convening the meeting and the delay and dislocation caused by enjoining the meeting will inflict significant prejudice upon the Applicant representatives for the claim group, the claim group members and the CYLC in the provision of support to claim group members in relation to the Native Title Application. The Applicant comes to court at the last minute, with considerable delay in agitating the matter.
2. There is no evidence in any of the material that the CYLC has failed to discharge any of the obligations conferred upon it by sections 203BA, 203BB, 203BC or 203BJ.
3. There is no evidence that the CYLC has failed to, as required by s 203BJ(b), identify persons who may hold native title in the area the subject of the claim for which the body is the representative body.
4. The questions as to the adding on of additional members to the claim group are matters to be considered by the applicants and those claim groups participating in meetings convened by CYLC.
5. CYLC’s notice to the claim group of the 31 October meeting was reasonable. There was no failure to perform statutory functions regarding this meeting.
6. The matters that are the subject of criticism of CYLC could arguably be seen as matters which ought properly be brought within the internal review process contemplated by the Native Title Act 1993 (Cth).
7. There are questions as to whether the applicant has standing to seek orders to compel the performance of the public statutory duty by a body such as the CYLC. This was not examined.
Federal Court of Australia (Greenwood J)
5 December 2006
The applicant sought a further interim injunction to restrain the CYLC from holding a meeting on 29th and 30th of November 2006. This meeting was to be held as a result of the cancellation of a previous meeting on 31 October 2006 due to the death of a member of the claim group. The October meeting was the subject of earlier proceedings in the Federal Court (see Gordon Charlie v Cape York Land Council [2006] FCA 1418) brought by the applicant. In the earlier matter, the applicant had sought an interim injunction to stop the October meeting. The application was dismissed by Greenwood J. The applicant applied again to the Court with further evidence as to the status of the Brim sub-group as legitimate claim members.
The Court was concerned with whether the applicant had adduced sufficient additional evidence to establish a serious question to be tried as to his entitlement to final relief in the proceeding, whether the applicant was likely to suffer irreparable injury and whether the balance of convenience favoured the granting of an injunction.
1. In assessing whether the applicant has made out a prima facie case, it is sufficient that the applicant shows a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. The governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought: [14] – [17] Australian Broadcasting Corporation v O’Neil [2006] HCA 46 applied.
2. The Court is not satisfied that the applicant has demonstrated a serious question to be tried or a prima facie case: [30].
3. No irreparable injury will arise should the meeting proceed. If the Brim family members are in a position to provide reliable information demonstrating an inter-relationship between the Brim and Charlie families and a connection with the lands the subject of the Dingaal claim, such information can be put before the CYLC and other Dingaal claim members to determine whether the group should be joined to the claim: [29].
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/13.html