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Indigenous Statements – Australia
Federal Court of Australia (Wilcox J)
25 November 1999
NATIVE TITLE — procedure — requirements for application — applicant must be authorised by all members of the native title claim group — applicants could not show individual authorisation or authorisation in accordance with custom or tradition — application for replacement of applicant failed because not authorised — native title claim failed to comply with statutory requirements and was dismissed.
The case concerns three proceedings instituted pursuant to the Native Title Act 1993 (Cth)(the Act) and arising out of claimant applications filed by a Ms Moran (or her representative, Mr Illert) on behalf of the Moran clan of the Gundungara. Ms Moran had purported to show that she was duly authorised by the members of the clan, as a native title claim group, in accordance with ss 61(4) and 62(1)(a)(iv) of the Act. This was contested by other members of the clan; Notices of Motion were filed seeking orders that the claimant applications be amended pursuant to s 66B of the Act in order to replace Ms Moran with a Mr Allen, on the ground that Ms Moran was no longer authorised by the claim group to act on their behalf in the application. Ms Moran also sought review by the Court of a decision of the Native Title Tribunal not to register a claim in the Register of Native Title Claims.
1. In an application for an order pursuant to s 66B of the Act, an applicant needs to establish that he or she is ‘authorised by the claim group to make the application and to deal with matters arising in relation to it’: s 66B(1)(b). This requires the applicant to show, and the Court to determine, who constitutes the ‘claim group’, and to do so by reference to the document or documents which make the claim.
2. Conformably with s 251B of the Act, authorisation by way of some traditional, collective decision making process may likewise suffice under s 66B(1)(b).
3. An authorisation made in accordance with the procedure laid down in s 251B of the Act must:
(a) identify all the members of the claimant group; and
(b) either be the result of some representative or collective process of decision making, the determination of which binds, or purports to bind, the claimant group as a whole (s 251B(a)); or be effected by individual authorisations from, if not all, then at least a majority of the members of the native title group (s 251B(b)).
4. No indication of the nature of the benefit being claimed as a right is given by a bare claim of right (subject to State and federal law) to enjoy and use and derive benefit from land and waters. Such a description is not specific enough to satisfy s 62(2)(d) of the Act.
5. The term ‘abuse of process’, as contemplated in the power of summary dismissal conferred by Order 20, rule 2(1)(c) of the Federal Court Rules, has a wide connotation and extends to proceedings that are foredoomed to fail, notwithstanding that such proceedings may be instituted and maintained for a proper purpose: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 followed.[1]
1. These reasons concern three proceedings instituted pursuant to the Native Title Act 1993. The question that arises, in relation to all of them, is whether the proceeding was properly commenced and, if so, which of two people is entitled to represent the claimant group. The two people are Kim Edna Eileen Moran, the person who originated the proceedings, and her second cousin once removed, William Allen, also known as Wilay Bijarr.
2. The first proceeding (N6001 of 1999) is an application for determination of native title. The proceeding was commenced on 22 January 1999 when an Application was filed by Christopher Roy Illert, for Kim Edna Eileen Moran. The application stated the claim was made by Ms Moran ‘on behalf of the Moran Clan of the Gundungara’.
3. Section 61(1) of the Native Title Act sets out a table which specifies the persons who may make an application for determination of native title:
(1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or
(2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or
(3) The Commonwealth Minister; or
(4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.
Ms Moran purported to be a person falling within category (1). In her application she said:
I am an Elder of the Gundungara people, descended from the tribal Kooradgie Bobby Murruin (born about 1816). I am a direct descendant of the traditional Gundungara Chieftains and Lore masters.
4. Section 61(4) of the Act deals with identification of the group. It says:
(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:
(a) name the persons; or
(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
Ms Moran purported to satisfy this requirement by including in her Application the following description:
The Moran Clan of the Gundungara people, all those directly descended from the Kooradgie ‘Bobby’ Murruin [born 1816] and Kempsey who were married in the great Corroboree of 1845 in the Burrogorang (sic) Valley.
The Burragorang Valley (now substantially covered by the waters of Warragamba Dam) lies southwest of Sydney, near Camden.
5. The subject of the Application is a parcel of land comprising 70.95 ha in the Ben Bullen State Forest, northwest of Lithgow. Apparently, the filing of the Application was stimulated by the fact that the Minister Administering the Forestry Act 1916 (NSW), in December 1998, had published a notice of intention to acquire by compulsory process ‘all the interests, including native title rights and interests (if any)’ in the land. Presumably because of the notice, the draft order set out in Schedule J of the Application was: ‘to be given rights to negotiate fair and just compensation from a position of strength that recognises our Native Title rights and interests.’
6. Section 62(2)(d) of the Act requires a claimant application to include, amongst other things:
a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.
In purported compliance with this requirement, the Application described the claimed native title rights and interests in this way:
the right (subject to State and Federal laws) for Gundunara [sic: Gundungara] people to enjoy and use and derive benefit from these lands and waters — as against the world. And if our traditional native title interests are to be challenged, or amended, then the rights to mediation and negotiation, with all stakeholders, so that a just and equitable compensation can be negotiated from a position of strength that recognises our Native Title rights and interests.]
7. Section 62(1)(a)(iv) of the Act requires a claimant application to be accompanied by an affidavit that states ‘that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it’. Ms Moran purported to comply with this requirement by filing an affidavit in which she said the basis of her authorisation was ‘the authority of my bloodline (see page 21 of book) plus the petition of most senior Morans’. The book to which Ms Moran referred was attached to the Application. Its stated author is Mr Illert and it is entitled ‘the Mayran Clan of the Gayn-d’hay-ungara’. It sets out material concerning the treatment by early white settlers of indigenous people who inhabited the Blue Mountains, Southern Highlands and Illawarra districts in New South Wales; in particular, the settlers’ practice of setting Europeanised aborigines against those still following a traditional way of life. The book identifies a Kooradji known as ‘Murruin’ (born about 1816) as being in the latter category when, in 1845, he contested the leadership of the Gundungara people against one Moyengully (or Mooringally) who had been recognised by Major Mitchell in 1828 as ‘Chief of Nattoi (sic).’ According to the book:
The battle between these two men, for leadership of the entire ‘Gundungurra’ nation, therefore represented a struggle between a kooradji (a traditional man, with ‘wild’ parents, steeped in the traditional lore and wisdom of his tribe) and a ‘chieftain’ favoured for whatever reasons by the European authorities.
8. The book claims Moyengully won the contest for supremacy and was thereafter recognised as leader of the Gundungara, at least by the white settlers. Murruin was exiled to a tract of land near Picton. One passage in the book suggests he remained there until he died. Another passage suggests Murruin obtained revenge over Moyengully in a battle at Camden in the following year. For present purposes, it does not matter which of these versions (if either of them) is correct. The important point is that Murruin’s line lived on. On page 21 of the book is a plan of lineal descent showing Kim Moran as a great-great-great-great-grand-daughter of Murruin. This page does not identify all the descendants of Murruin.
9. The ‘petition’ referred to in the Application consists of five sheets bearing the names and addresses of 22 people. Most of the addresses are within the Kempsey district, on the north coast of New South Wales, although one address is as far away as Lavington, near Albury, and one at Armidale. Each sheet is headed ‘Native Title Petition’ and contains the inscription:
We the under-signed members of the mura:n Clan of the gun:du:nuru hereby formally authorise our relative Kim Edna Eileen MORAN to act on our behalf as the Applicant an [sic] all our gun:du:nuru Native Title Claim(s). Also Christopher Roy ILLERT, at the above address and contact numbers, is our authorised Representative for these Native Title Claims and matters arising from them. He shall henceforth deal with the Native Title Tribunal, the Federal Court, the NSW State Land Council, ATSIC and other stakeholders or their representatives, on our behalf, as needed during the course of our claim(s).
10. Finally, there was attached to the Application an authority, apparently signed by Ms Kim Moran, authorising Mr Illert to act on behalf of herself and the Moran Clan in relation to all native title matters.
11. On 11 March 1999, Mr Illert filed an Amended Application in matter N6001 of 1999. The Amended Application repeated that Ms Kim Moran applied ‘on behalf of the Moran Clan of Gundungara People’, but it gave a fuller account of her authorisation:
I am a direct blood-line descendant of the Gundungara Tribal ‘Carradgie’ ‘Bobby Murruin’ and his wife, both of whom are mentioned on the 6th August 1842 Return of Aboriginal Natives, taken at Picton NSW. Because I am directly descended down the male line, from his son’s [1846-1921] son’s [1873-1916] son’s [1888-1937] son’s [1916-1990] son [1941-1976] I still bear the original ‘Moran’ family name and, for what its worth, I have darker skin than most, and curly black hair. I am a Gundungara Elder duly authorised by the Moran Clan’s Council of Elders, chaired by Auntie Zona Moran, and a mass petition of scores of relatives which resulted from extensive meetings all along coastal NSW on missions, in private homes, and at venues ranging from the Bellambi Sewage Works in Wollongong to the NSWALC Regional Branch Office at Kempsey which was linked by phone live to the Illawarra during the meeting. I also happen to be Wollongong City Council’s official Aboriginal Liaison Officer representing the entire northern Illawarra.
12. Extracts from Mr Illert’s book were attached, along with some extracts from official records and copies of photographs. The draft order set out in Schedule J was amended, but it continued to focus on a right to negotiate compensation for the compulsory acquisition of the subject land. Attachment R to the Amended Application stated:
An existing traditional process of decision making has been employed to authorise the applicant, and this claim, by the claim group (so far as s 251B is concerned). See attached letter by Zona Moran & Kim Moran. Tradition evolves and changes even in the Westminster System. Today in the Moran Clan of Gundungara’s [sic] this process involves mutual consultation ‘by Koori means’ initially amongst the Council of Elders, chaired by Zona Moran, and then ultimately a grass-roots level majority consensus (as evidenced by the scores of signatures from Moran Clan descendants from all over NSW contained on the accompanying petition). This unfunded process of consultation has been both broad and ongoing, involving many informal meetings in family homes and on missions all over NSW.
The attached letter, written on the letterhead of the Kempsey office of Many Rivers Aboriginal Legal Service but undated, was signed by Zona Moran on behalf of ‘Moran Council of Aboriginal Elders.’ It was addressed to this Court and read:
there has always been a traditional process of consultation and decision making within the Moran Clan of Gundangarra people. This process was employed to authorise the recent Native Title Claim’s [sic] and for the convenience of the Court and Tribunal we have even supplied a petition signed by senior elders of each group of the clan.
13. The letter was followed by minutes of a meeting held at Kempsey on 7 February 1999. The minutes described the meeting as ‘Moran’s Elders Meeting’. They said eight people attended: Kim Moran, Zona Moran, Cheryl Blair, Colin Campbell, Lavina [sic: presumably Lavender] Smith, Elizabeth Cohen, Gloria Holten and Joan Dickson. There was an apology from Elizabeth Campbell. The first item was recorded as follows:
Full support from the elders given to Kim Moran to carry on with all the imput [sic] she has given towards the search and the claims, on the Moran’s behalf.
Subsequent items referred to ‘the court hearing’, so it seems the meeting was aware Ms Moran had instituted a proceeding.
14. The Amended Application is supported by 13 sheets of the document headed ‘Native Title Petition’ previously mentioned. These sheets include copies of the five sheets attached to the original Application. Some names appear on more than one sheet. Two sheets contain a total of eight names, six with addresses but all without signatures, that are apparently all in the same handwriting. Once again most of the addresses are on the north coast of New South Wales, predominantly in the Kempsey district, but a few are further afield. The sheets contain 59 different names.
15. On 7 May 1999, Mr Illert filed an Application seeking review by the Court of a decision made on 23 April 1999 by the National Native Title Tribunal in relation to claim N6001 of 1999. Apparently the Tribunal had decided not to register the claim in the Register of Native Title Claims maintained under Pt 7 of the Act. The filed Application contains much of the material already filed in this Court in respect of N6001 of 1999, but not the decision of the Tribunal. However, the details of the claim include the assertion that the Tribunal ‘did not properly consider the evidence, provided in support of our application, as it related to s 190B(5) and 190B(6)’. These subsections require that, before registering a native title claim, the Registrar ‘must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion’ (s 190B(5)) and ‘must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established’ (s 190B(6)).
16. On 30 August 1999, Mr Illert filed a further affidavit purporting to address these questions.
17. On 30 April 1999, Mr Illert filed on behalf of Ms Kim Moran a second claimant application. In this case, also, Ms Moran purported to act ‘on behalf of the Moran Clan of Gundungara People’. By way of authorisation, she repeated the statement set out in the Amended Application for proceeding N6001 of 1999, quoted in para 11 above. The area covered by the application was described as follows:
All Crown lands, Crown freehold land, Crown roads, Crown leases, waters, creeks, reserves, National Parks, and land held by Local Aboriginal Land Councils within the borders of the
(i) National Parks and State Recreation Areas itemised in Schedule B1, and
(ii) State Forests and Reserves itemised in Schedule B2, and
(iii) vacant and reserved Crown lands itemised in Schedule B3, and
(iv) leasehold lands itemised in Schedule B4, and
(v) waters and streams within these areas including the Cox’s River and its tributaries Kowmung River, Wollondilly River, Nattai River, Little River and Thirlmere Lakes, as indicated on the Schedule C maps and, where applicable, defined by proclamations in the ‘Government Gazette’.
This application excludes lands and waters over which native title has been extinguished, or determined, and lands subject to freehold grants except such grants made for the benefit of Aboriginal people. Also excluded are the lands and waters at Ben Bullen and Cullen Bullen subject to our native title claim N6001/99 which was in response to a section 29 notice. Also if in future we become adjoined to any of the native title claims NG6026/98, NG6044/98, NG6047/98, NG6050/98, NG6057/98, NG6111/98, NG6108/98, NG6182/98, then the relevant claim areas will, from that time, also be excluded from our present application.
18. Schedule B1 lists eight National Parks, five State Recreation Areas and three National Reserves. They extend from the Garden of Stones National Park, near Capertee on the Mudgee road, to the Illawarra. Schedule B2 lists 22 State Forests and three Reserves, equally widespread.
19. Schedules B3 and B4 refer, respectively, to ‘all vacant and reserved Crown land’ and ‘all leasehold land’ on maps identified in Schedule C. Those maps are official maps showing areas ranging from the Garden of Stones National Park to the Nowra-Batemans Bay region; in total they comprise a substantial part of New South Wales. Schedule D identifies seven parcels of freehold land in the Nattai/Couridjah region; but that is only a small part of the claim area. As the claim area takes in many urban areas, including several substantial towns, it must contain thousands of fee simple holdings.
20. Schedule J of the Application sets out a ‘plain English statement of what is sought’. It reads:
Subject to whatever State and Federal Laws apply (which are not inconsistent with the Racial Discrimination Act 1975 or the Native Title Act 1973 [sic]) — the Mayran Clan of Gaynd’hayngara seek legal recognition, at least throughout the portions of Mayran-d’haray (Moran Territory) subject to this present claim, that
(1) Mayrans are the rightful indigenous custodians (to the exclusion of all others) of the lands waters and sites — with continuing legal rights to enjoyment, access, use and benefit:
(2) Mayrans are the rightful indigenous practitioners of traditional Gaynd’hayngara language, storytelling, cave-painting, dancing and Sacred Hand Lore — with a continuing legal right to practice this Traditional Business throughout the lands, waters and sites, to the exclusion of others:
(3) Mayrans as the ruling ‘middle finger’ clan of the entire Gaynd’hayngara nation — descended from the only Gaynd’hayngara ‘Carradgie’ ever listed as such on official records and empowered as a warrior chieftain by traditional military means as recently as the Battle of Camden (circa 1846) — are the rightful indigenous stakeholders (to the exclus-ion [sic] of all others) to necessarily be negotiated with, and consulted about, native title rights and interests in relation to Future Acts, land tenure changes and management strategies/decisions that affect the flora, fauna, lands, waters or sites and, when necessary, compensated.
21. The Application filed in matter N6006 of 1999 contains a copy of the undated letter of Zona Moran that was used for N6001 of 1999, a copy of the minutes of the meeting of 7 February 1999 and also copies of the sheets headed ‘Native Title Petition’ that were used in connection with the earlier claim. There is nothing to indicate that those who participated in the earlier authorisation exercise were aware of Ms Moran’s intention to make this wider claim.
22. At a directions hearing on 30 August 1999, Mr Stephen Friend, solicitor, sought leave to appear for Mr Allen and to file in Court Notices of Motion, each dated 25 August 1999, in matters N6001 of 1999 and N6006 of 1999. In each case, the Notice of Motion sought an order that the Application
... be further amended pursuant to s 66B of the Native Title Act 1993 (Cth) to replace the named applicant, Kim Edna Eileen Moran, with William Allen (Wilay Bijarr) on the ground that Kim Edna Eileen Moran is no longer authorised by the claim group to make the application to [sic: or] deal with matters in relation to it.
23. Section 66B of the Act relevantly provides:
(1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:
(a) either:
(i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or
(ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and
(b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.
(2) The Court may make the order if it is satisfied that the grounds are established.
(3) ...
(4) ...
24. I permitted Mr Friend to appear for Mr Allen and file in Court his two Notices of Motion. I expressed regret at the apparent conflict within the Moran family regarding the carriage of the proceedings. I also expressed concern that there appeared to be some uncertainty as to the identity of the persons within the claimant group. With these matters in mind, I made two requests:
1. The Court requests the Native Title Unit of the New South Wales Aboriginal Land Council to hold discussions with all the persons named in the documents relating to the application as persons potentially interested in that claim (and) formulate a list of persons who appear to be descendants of B. Murruin born circa 1816 who may have retained some traditional association with the land the subject of any claims.
2. Further request that after a list is formulated, the Native Title Unit hold one or more meetings to endeavour to ascertain the wishes of those people as to whether the claims should proceed, and if so in respect of what areas and with what persons and who is the representative claimant.
I then adjourned the hearing of the motion until 3 November 1999.
25. Apparently, there was some discussion, under the auspices of the Native Title Unit of the Aboriginal Land Council; but no list was formulated and there was no agreement regarding representation. Accordingly, on 3 November, I heard the motions. Mr Illert represented Ms Kim Moran and Mr Friend appeared for Mr Allen. The New South Wales Minister for Land and Water Conservation and the New South Wales Aboriginal Land Council were also represented, but neither of those parties took an active role in the contest between Mr Allen and Ms Moran.
26. In support of the order sought in the Notices of Motion, Mr Friend read a number of affidavits. These affidavits contain some inconsistencies. However, they clearly establish that Ms Moran no longer has the confidence of many of the people who signed a Native Title Petition sheet. Moreover, nine of the people whose names appear on one or more of the sheets have signed a typewritten note reading as follows:
I (name inserted) did not sign the Native Title Petition which was used by Christopher Roy Illert in the Native Title Application NC99/01 and 99/03. My signature was provided on a separate blank piece of paper and was intended and stated to be used for a completely unrelated purpose.
The note does not indicate what that purpose was or why the blank piece of paper was signed.
27. Five of the persons who signed the typewritten note, Gloria Holten, Colin Campbell, Lavender Smith, Elizabeth Cohen and Zona Moran, attended the meeting at Kempsey on 7 February 1999 which resolved to support Kim Moran’s ‘imput [sic] ... towards the search and the claims’. Moreover, one of the five people, Ms Zona Moran, stated in an affidavit that she signed both the undated letter to the Court on the letterhead of Many Rivers Aboriginal Legal Service and a sheet of the Native Title Petition.
28. Ms Lavender Smith also swore an affidavit. She said she signed her name ‘to a list of names of members of our family to support the native title application by our second cousin Kim Moran’ but the Native Title Petition sheet ‘is not the document I signed’. Ms Smith said that, with his permission, she had added to the list the name of her brother, Mr Allen, but the relevant sheet of the Native Title Petition ‘is not the document I signed on my brother’s behalf’.
29. Ms Elizabeth Cohen deposed that she signed her name to ‘a list of names of members of our family to support the native title application by our second cousin Kim Moran’; she understood this was in respect of a ‘claim in the country west of Sydney’ but she subsequently learned the list had been used for ‘a large ‘blanket’ claim, N6006/99’ as well as eight Notices of Motion affecting other native title claim groups. Ms Cohen said she attended a meeting at Kempsey on 29 October 1999 involving 18 members of the Moran family, whom she named. They included Ms Kim Moran. However, Ms Cohen said, Ms Kim Moran ‘left following an exchange of words in which she was disrespectful to one of the senior women in our family Lavender Smith’. The persons remaining at the meeting resolved to withdraw support from Ms Kim Moran and to authorise Mr Allen to represent their interests and withdraw the proceedings. [As I understand his position, if the relief sought in the Notices of Motion is granted, Mr Allen will discontinue the current claims.]
30. Mr Friend made an affidavit to which he annexed statements made by 17 of the persons whose names appear on the Native Title Petition sheets. Execution of those statements is deposed to by Melissa Begg, a legal consultant to the Native Title Unit of the Aboriginal Land Council. Each statement reads as follows:
Sometime in early 1999 I added my name to a list to support my cousin Kim Moran in a native title application. I did not receive any advice about the application and wished only to indicate my support for Kim. I later learnt that my signature had been included in a document called a ‘Native Title Petition’ which was meant to give authority to Kim to act on my behalf in claims to native title in Gundungara country and nominate Chris Illert to be my representative. I also learnt that my signature and that document was later used in a second larger native title application and that proceedings had been commenced in the name of the Moran Clan against other native title applicants who have claims in the Gundungara area.
I have been named as a member of the Moran Clan in the application filed by Mr Illert on behalf of Kim. I can say that I was not personally consulted in relation to any of those additional proceedings. I have not given my consent to Kim to involve me or my family in those proceedings. I would like to withdraw from Kim any authority to pursue a native title application on my behalf and do not consent to be represented by Mr Illert in any proceedings. Until proper research is done and I and my family have received comprehensive advice about any native title rights and interests we may hold, I do not wish to be involved in these native title proceedings nor to claim any country in the Gundungara area.
I regret that these actions have taken place without my knowledge. I now authorise William Allen (Wilay Bijarr) to take any steps that may be necessary to withdraw all the proceedings commenced in the name of the Moran Clan in the Federal Court.
31. There is some overlap between the people who signed these letters and those who disclaimed support for Ms Kim Moran in some other way; but not much. Adding together the various methods of disclaimer, it appears a substantial proportion of the 59 people whose names appear on the Native Title Petition sheets no longer support Ms Moran, if ever they did. In addition at least ten people, who are apparently Moran family members but not petitioners, oppose Ms Kim Moran’s prosecution of the claims.
32. One of the matters that Mr Allen needs to establish, in order to obtain an order under s 66B of the Act, is that he is ‘authorised by the claim group to make the application and to deal with matters arising in relation to it’: see s 66B(1)(b). In order to decide whether that requirement is satisfied, it is first necessary for the Court to determine who constitutes the ‘claim group’. This must be done by reference to the document or documents making the claim.
33. In the present case, it will be recalled, both applications were made ‘on behalf of the Moran Clan of the Gundungara’. The Moran Clan was identified as ‘all those directly descended from the Kooradgie “Bobby” Murruin’. However, although the Application filed in matter N6006 of 1999 stated that ‘a comprehensive Moran Clan family tree spanning eight generations is currently in preparation’, no list of Murruin’s descendants has yet been filed. Partial family trees attached to some affidavits suggest Murruin and his wife had several children. After six or seven generations, there may be hundreds of living descendants. Many of these people may be out of contact with any of the participants in these proceedings. Whether or not for that reason, the people within the group have not yet been comprehensively identified. This affects Mr Allen’s ability to demonstrate he is ‘authorised by the claim group’ to do anything. Although he apparently enjoys substantial support amongst identified family members, it is impossible to know whether this amounts to majority or consensus support within the group as a whole.
34. It is appropriate, insofar as this is consistent with the terms of the statute, to apply to the Native Title Act any relevant customary law or traditional practice; compare s 82(2) of the Act which empowers the Court, in conducting its proceedings, to take account of cultural and customary concerns; for example, presumably, about speaking of particular people or matters. So I accept it may be possible to satisfy the requirement of s 66B(1)(b), of authorisation by the claim group, otherwise than by proving the making of individual decisions by all or most of the members of the group; it would be enough if there was a decision by a representative or other collective body, that exercises authority on behalf of the group under customary law. This is consistent with the provision in s 251B of the Act for representative authorisation of the making of a native title determination application, about which I will say more later. However, a person who wishes to rely on a decision by a representative or other collective body needs to prove that such a body exists under customary law recognised by the members of the group, the nature and extent of the body’s authority to make decisions binding the members of the group and that the body has authorised the making of the application.
35. The material attached to the Amended Application in matter N6001 of 1999 and the Application in matter N6006 of 1999 includes a document that purports to be minutes of a meeting of eight people held at Kempsey on 7 February 1999. The minutes are headed ‘Moran’s Elders Meeting’ but no evidence has been put before the Court regarding the meeting. There is no evidence of the existence of a Council of Elders, its membership or its powers. There is no evidence as to the composition of any group of people represented by any such Council. Given the number of people likely to be descended from Murruin, and their apparent geographical spread, it seems unlikely there is an ongoing Council of Elders exercising general authority over, or on behalf of, all of them. Certainly, it cannot be assumed, without more, that the eight people who attended this meeting had such a role.
36. The minutes constitute the only reference to a body purporting to be able to speak for the Moran clan as a whole. Even if those who attended the meeting enjoyed such a power, they did not use it on 7 February to authorise Mr Allen to do anything. The meeting of Moran family members held on 29 October 1999 passed a resolution authorising Mr Allen to represent the interests of the people who attended the meeting. But it is not suggested those people had authority to speak for the clan as a whole. Whatever the extent of his support from individuals, it does not appear that Mr Allen has yet been authorised to make any s 66B application.
37. Mr Allen’s applications for replacement must fail. It is not necessary to consider any issues arising under para (a) of s 66B(1). Mr Allen cannot satisfy para (b). Each of the Notices of Motion must be dismissed.
38. However, the problem of authorisation does not stop there. I have already noted that s 61(1) requires an applicant in the position of Ms Moran to show she or he is ‘authorised by all the persons ... who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’. Section 251B says how this may be done. It reads:
For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a) where there is a process of decision making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind — the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b) where there is no such process — the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
The authorisation claimed by Ms Moran does not fall within either of these alternatives. As to para (a), I note the assertion in Attachment R to the Amended Application that an ‘existing traditional process of decision making’ was employed to authorise the claim N6001 of 1999. Reference is there made to ‘the Council of Elders, chaired by Zona Moran’. Presumably this is a reference to the meeting of 7 February 1999. However, it does not appear that the people who met on 7 February 1999 at Kempsey enjoyed, or purported to exercise, any power to bind the claimant group as a whole. Nor is it asserted that the process of decision making employed in this case involved all the persons whom Ms Moran identified as members of the claimant group; that is, descendants of Murruin. Clearly it could not have done; not all those people have yet been identified.
39. The only direct evidence about the meeting of 7 February 1999 is contained in the affidavit of Ms Zona Moran, the person stated in Attachment R to the Amended Application to have chaired what was presumably this meeting. In an affidavit read by Mr Friend, Ms Zona Moran said:
To help Kim with the claim I provided to her historical documents which I had found in the course of my own research into Bob Moran. In company with other members of my family we met Kim at Kempsey on 7 February 1999 and I gave her the documents. Annexed and marked ‘E’, ‘F’, ‘G’, ‘H’, ‘I’, ‘J’, ‘K’, ‘L’, ‘M, ‘N’ are copies of the documents I provided to Kim which are part of the historical material relied upon in this application.
40. Annexures ‘E’ to ‘N’ are copies of genealogical records and photographs. It is notable that Ms Zona Moran makes no claim that the meeting on 7 February 1999 was a meeting of a ‘Council of Elders’ or of any other representative or collective body having power to bind all the descendants of Murruin. Nor does she assert that the meeting had any status under the traditional laws and customs of the members of the claimant group. In her affidavit, Ms Zona Moran refers to the authorisation statement quoted in para 11 above. She says it ‘is an example of the mis-statement of Kim’s status in our family’. Ms Zona Moran seems to be saying that the meeting of 7 February was not a meeting of the family’s Council of Elders, if such a body exists. I note, also, that Ms Zona Moran describes Ms Kim Moran as ‘a junior member of our family’. That is inconsistent with her participating in a meeting of a Council of Elders. Ms Zona Moran made it clear that she had no knowledge of the claim in N6006 of 1999, which she described as a ‘huge “blanket” claim’, until after it was filed.
41. Nor does Ms Moran bring herself within para (b). While I accept that this paragraph is wide enough to encompass individual authorisation by each member of the group, the authorising individuals must amount, collectively, to ‘the persons in the native title group’. Perhaps there need not be an authorisation by every individual in the group, but it must at least appear that the authorising individuals constitute a majority of the members of the group. In order to do that, Ms Moran needs to identify all the living descendants of Murruin, the people she calls ‘the Moran clan’.
42. Ms Moran has failed to show she is a person falling within s 61(1) of the Act, and so entitled to make a claimant application.
43. In para 6 above I mentioned the requirement of s 62(2)(d) for a description of the claimed native title rights and interests. That paragraph stipulates it is not enough to refer to all native title rights and interests that may exist, or have not been extinguished. The claim in N6001 of 1999 was described as ‘the right (subject to State and Federal law) for Gundungara people to enjoy and use and derive benefit from these lands and waters’. That description is insufficiently specific; it gives no indication of the nature of the benefit that is claimed as a right. The claim in matter N6006 of 1999 is a little more specific; I prefer not to express an opinion whether or not it complies with s 62(2)(d).
44. During the course of the argument regarding Mr Allen’s motions, I drew to Mr Illert’s attention, in connection with matters N6001 of 1999 and N6006 of 1999, Ms Moran’s apparent failure to comply with s 61(1) of the Act. I suggested the appropriate course might be to dismiss both applications, leaving it to her to institute one or more fresh applications, if she wished and could obtain the necessary authorisation. Mr Illert resisted this suggestion, in relation to N6001 of 1999, on the basis that the dismissal of the proceeding would be fatal to Ms Moran’s chances of preventing acquisition by the Minister of any native title rights attached to the Ben Bullen land. However, recognition by the Court of a native title interest in the land would not prevent acquisition of that interest by compulsory process under the Forestry Act; the only result of recognition would be to facilitate a compensation claim. But compensation would, in any event, be available to the holders of native title rights that were acquired by compulsory process. I do not think the threatened acquisition affords a reason for declining to take whatever course is otherwise appropriate.
45. Order 20 rule 2 of the Federal Court Rules provides:
2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding —(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1).
The power conferred by Order 20 rule 2 ought to be cautiously exercised. It will not, ordinarily, be appropriate summarily to dismiss a proceeding that is even arguably justifiable. However, in a clear case, there is every reason to exercise the power, and thereby free other parties from the burden of the proceeding. Importantly, the power conferred by Order 20 rule 2 is not dependent upon an application by a party. The Court may exercise the power of its own motion; although of course the Court must always warn the parties of the contemplated action and give them an opportunity to present submissions in relation to it. These requirements were satisfied in the present case.
46. I do not think para (a) or para (b) of rule 2(1) has any application to this case. However the term ‘abuse of the process of the Court’ has a wide connotation. It is often applied to a proceeding instituted for a collateral or improper purpose. But the term is not so confined. In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said:
... it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.
47. It seems to me that proceedings N6001 of 1999 and N6006 of 1999 are clearly foredoomed to fail. If either of them went to trial, the proceeding would have to be dismissed on the basis that it was not well commenced; there had been no authorisation as required by s 61(1) of the Act. Consequently, the power conferred by Order 20 rule 2 is enlivened.
48. Having given the matter deep consideration, I have reached the conclusion that I ought to exercise the power conferred on me by Order 20 rule 2. The obtaining of proper authorisation of a claimant application is a fundamental requirement of the Native Title Act. It is important that those who come to the Court asserting a native title right, with all this involves in terms of effort and expense to other parties and the Court itself, should be properly authorised to make the claim. As I have explained, this does not necessarily mean the applicant must be individually authorised by each member of the claimant group. It will be enough that the applicant has been authorised to make the claim in accordance with a process of decision making recognised under the traditional laws and customs of the claimant group. In meritorious cases, that is unlikely to be an onerous requirement. Traditional laws and customs are likely to exist in cases where the claimant group still maintains a vigorous communal life.
49. The present cases illustrate the importance of proper authorisation. In order to establish proper authorisation, Ms Moran would have had to identify by name all the people within the claimant group, or a collective body able to speak for the group as a whole. If she had done either of these things, Mr Allen could have explored, and, possibly, ultimately demonstrated, the extent of his support as a replacement applicant. However, because the membership and/or leadership of the group was not properly defined, he has been unable to do this. The Court is left in the position of finding that Ms Moran and Mr Allen each apparently enjoy a measure of support from people who claim to fall within the group, but being unable to say which (if either) of them is entitled to act for the group as a whole. The failure of Ms Moran to comply with s 61(1) in relation to N6001 of 1999 and N6006 of 1999 has led to a situation of embarrassment in each proceeding. In deciding to exercise the discretion given to me by Order 20 rule 2, I am influenced by the practical advantages that will result from tidying up the matter of authorisation and by the knowledge that dismissing the present proceedings will not prevent the making of one or more fresh applications that comply with the requirements of the Act.
50. During discussion about the possibility of orders dismissing matters N6001 of 1999 and N6006 of 1999, I raised with the parties the position in connection with N6008 of 1999. As previously mentioned, this is not a claimant application; it is an appeal against the Registrar’s refusal to register the application numbered in this Court as N6001 of 1999. All parties agreed that, if N6001 of 1999 was to be dismissed for failure to comply with a requirement of the Act, the Registrar’s decision would have to be regarded as correct; accordingly, the appeal would have to fail and it would be appropriate also to dismiss that proceeding. I agree with this analysis of the situation.
51. In each of matters N6001 of 1999 and N6006 of 1999 I propose to order that both the Notice of Motion dated 25 August 1999 and the principal proceeding be dismissed. I will also order that matter N6008 of 1999 be dismissed.
Representative of the Applicant:
Mr C R Illert
Solicitor for the First Respondent:
Crown Solicitor
Counsel for the Second Respondent:
Ms S Phillips
Solicitor for the Second Respondent:
Ms A Eisenberg, NSW Aboriginal Land Council
Solicitor for the Applicant in the Notice of Motion:
Mr S Friend, Friend & Hazard Solicitors
[1] The text of the judgement is also available at <www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%fct/1999/1637.html>.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2000/17.html