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Editors --- "Pooncarie' Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25" [2006] AUIndigLawRpr 26; (2006) 10(2) Australian Indigenous Law Reporter 41

‘Pooncarie’ Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation

Federal Court of Australia (Stone J)

2 February 2006

[2006] FCA 25

Native Title — Application to replace applicant under s 66B of the Native Title Act 1993 (Cth) — representation of Indigenous clients by non-lawyers.

Facts:

In October 1997, the Pooncarie Barkandji People (the claimant group) made an application for the determination of Native Title in an area of south-western NSW. Due to the claimant group’s lack of confidence in the ability of the original two applicants to manage the claim, a Federal Court order was sought and awarded to replace the applicants with eight other individuals from the claimant group in September 2004. Among this number, two of the applicants – Ray Lawson and Noel Johnson – wanted the application to be split into two separate Native Title claims. This created tension between them and the other six other applicants.

Following attempts at mediating the interests of the applicants, The NSW Native Title Services held a meeting of the claimant group wherein it was agreed upon to replace Mr Lawson and Mr Johnson as applicants with other members of the claimant group. Relying on s 66B of the Native Title Act 1993 (Cth), the applicants filed a notice of motion on 14 October 2005 seeking an order to replace Mr Johnson and Mr Lawson as applicants with other members of the Claim Group.

Following the notice of motion being filed, Mr Johnson and Mr Lawson requested the court exercise its power under s 85 of the Native Title Act 1993 (NSW) to grant them leave to be represented by a non-lawyer in the matter.

Held, granting application and refusing the grant of leave:

1. A court may order the replacement of an applicant under s 66B of the Native Title Act 1993 (Cth) in the situation that the following criteria are established:

(a) There is a claimant application;

(b) Each applicant for an order under s 66B is a member of the native title group;

(c) The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(d) Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group;

(e) The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it: [28] Daniel v Western Australia [2002] FCA 171.

2. Under s 251B(b) of the Native Title Act 1993 (Cth) it is sufficient that ‘authorisation’ is constituted by ordinary agreement by members of the claim group where no customary law exists to govern ‘matters of such a kind’: [26], [30]–[32].

3. The power of the Federal Court to grant leave to non-lawyers to represent applicants in Native Title proceedings under s 85 can be extended to applicants who are not as individuals party to the proceedings. Such an extension if granted can be viewed as an ‘incidental and necessary power’ of the court: Parson v Martin [1984] FCA 408; (1984) 5 FCR 235, [8].

4. Grants of special leave to unqualified representatives in Court should only be granted in the case that problems would otherwise arise in the administration of justice: [9] Harrington Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871.

5. Allowing applicants individual legal representation is generally not in the interests of justice, since applicants have no legal interests apart from that which they derive from representing their claim group: Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411, [10]–[11].