Applicant can act by majority

10.38   The question of whether an applicant can act by majority is closely related to the question of whether a claim group can define the scope of the applicant’s authority. As noted above, the Federal Court has held that a claim group may authorise an applicant to make decisions by majority.^[41] However where the terms of the authorisation are silent, an applicant must act jointly.^[42]

10.39   There are some difficulties with the default position requiring a joint, or unanimous, decision. It gives a minority of the members of the applicant a veto power. If a disagreement cannot be resolved, the only recourse is to replace the applicant, which is expensive and time consuming, and does not necessarily resolve the disagreement. The default position in other areas of decision-making is usually a simple majority.^[43] The ALRC considers that Aboriginal and Torres Strait Islander applicants should not be required to use arguably more burdensome unanimous decision-making. As Muirhead J said

I cannot accept the argument that… Parliament intended, as it were, to add a rider to the effect ‘there can be no consensus of Aboriginals without unanimity’. This would be contrary to the Aboriginal decision making processes as I understand them and would deny the wishes of the majority. It would mean that one dissident, one objector—however reasonable or unreasonable his dissent and whatever its motive—could frustrate the Land Council’s role in assisting the Aboriginals to make decisions concerning the use or non-use of their land.^[44]

10.40   It is proposed that, if the authorisation is silent on the matter, the applicant should be able to act by majority. As Collier J noted,

the purpose of ss 61(1), 62(2)(c) and 251B is to seek a workable and efficient method of prosecuting claims for native title determination, one which limits the potential for dispute which might stifle the progress of claims… An interpretation of ‘the applicant’ within the meaning of ss 61(1), 62(2)(c) and 251B, which gives effect to decisions of the majority of those persons comprising the applicant, is consistent with the purpose of achieving a workable and efficient method of prosecuting claims for native title determinations.^[45]

10.41   Should a claim group wish its applicant to act only after a unanimous decision, or after a decision made by more than 50 per cent plus one members, it may impose such a condition on its authorisation.