Authorisation

209. The Terms of Reference ask the ALRC to consider whether any barriers are imposed by the Act’s authorisation provisions to claimants’, potential claimants’ and respondents’ access to justice. Access to justice includes access to courts and lawyers, but also information and support to prevent, identify and resolve disputes.^[266] In the context of native title law and legal frameworks, the ALRC considers that access to justice encompasses both procedural rights and access to the resources necessary to participate fully in the legal system.

210. This section of the Issues Paper outlines the law and practice relating to authorisation, and asks whether changes should be made to these procedures.

What is authorisation?

211. The authorisation provisions were introduced into the Native Title Act in 1998.^[267] Before this, any member of a claim group could apply for a determination of native title, which resulted in large numbers of conflicting and overlapping claims. Now, to make an application for a determination of native title, a person or group of people must be authorised by all the people who hold the native title claimed.^[268] The person or group of people is known as ‘the applicant’, and the people who hold the native title are known as ‘the native title claim group’.

212. Similarly, to make an application for compensation,^[269] a person or group of people must be authorised by all the people who claim to be entitled to the compensation. The person or group of people is ‘the applicant’, and the people who claim to be entitled to the compensation are ‘the compensation claim group’. The discussion in this section of the Issues Paper refers to both native title claims and compensation claims, unless otherwise indicated.

213. The process for authorising an application is set out in s 251B. If the claim group has a traditional decision-making process that must be complied with in relation to authorising similar matters, the group must use that process. Otherwise, the group can use a process of decision-making agreed to and adopted by the group.^[270] Susan Phillips has described this scheme as ‘troubling’, because it requires a group, when seeking recognition of rights and interests possessed under traditional laws and customs, to admit that it does not have a traditional decision-making process for ‘things of that kind’.^[271]

214. The Native Title Act does not require all members of a claim group to participate in the decision-making process. It is sufficient if all members have been given an opportunity to participate.^[272] The decision by the participants does not need to be unanimous.^[273]

215. Justice French described authorisation as

a matter of considerable importance and fundamental to the legitimacy of native title determination applications. The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title.^[274]

216. A claim cannot be registered unless the Registrar is satisfied that the applicant is authorised to make the application, or that the representative body has certified that the applicant is authorised.^[275]

217. The ALRC seeks views on whether these provisions are effective in ensuring that claims are made by applicants who have the approval of the claim group. The ALRC is also interested in views as to whether the claim group should be able to adopt a decision-making process of its choice.

The process of authorisation

Identifying the claim group

218. Before a claim can be authorised, the claim group must be identified. The native title claim group is 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’.^[276] In the case of a compensation claim, the claim group is ‘all the persons … who claim to be entitled to the compensation’.^[277] As noted earlier, the courts have indicated that the native title claim group must be ‘a recognisable group or society that presently recognises and observes traditional laws and customs’.^[278] The application for a native title determination or compensation must either name the members of the claim group or ‘otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons’.^[279]

219. In some communities, identifying the claim group is a straightforward task. In others, there are significant difficulties. One source of difficulty is the legal requirement that a claim group be a discrete entity with clear rules for membership.^[280] This is not consistent with the complex nature of Aboriginal and Torres Strait Islander societies, which (like non-Indigenous societies) do not always have definite boundaries.^[281] People may identify with different groups based on economic or ritual activity, kin relationship or language.^[282] Kingsley Palmer has noted that ‘the social units that comprise Aboriginal groups are not easily or simply identified’.^[283]

220. A second source of difficulty in identifying claim groups is the impact of colonisation. Forcible exclusion from land, confinement on reserves, discouragement of language and the removal of children all had drastic effects on the social organisation of Aboriginal and Torres Strait Islander people.^[284] A group may continue to observe traditional laws and customs, but also have difficulty identifying its membership because of these disruptions.

221. Before an authorisation process can occur, decisions must be made about the correct ‘recognition level’ for framing the group. For example, should the claim group be framed as a clan or estate group, a society or a ‘cultural bloc’?^[285] Usually a ‘sub-group’ of a larger community cannot hold native title,^[286] but there are exceptions.^[287] The question of whether a group comprises a society, with its own laws and customs, rather than a sub-group, is not always easily answered.^[288]

222. An Aboriginal or Torres Strait Islander community may be made up of people who can trace ancestral links to country back to pre-sovereignty times. It may also include people with a historical connection to land—that is, their parents or grandparents may have moved into the area, become part of the community, and observed its laws and customs. In some communities, under traditional laws and customs, ‘historical people’ are native title holders and are included in the claim group.^[289] In other communities, only those with ancestral connection may be included.^[290] These are complex issues with considerable potential to cause disputes within groups, as well as misunderstanding within the Australian legal system.

223. Finally, the identification of the members of the claim group is intrinsically linked to the identification of the boundaries of land claimed. Determining claim boundaries is complex where traditional laws and customs give rise to a ‘complex regional relational and networked matrix of rights and interests’^[291] which may include shared areas, or may tolerate inconsistent ownership claims.

224. Resolution of these (and other) difficult questions is necessary before the claim group can be confidently identified. The assistance of anthropologists and historians may be required, and it may take some time for their field work to be done and their reports prepared. However, claims are often lodged in response to notification of a proposed future act. People who claim to hold native title have three months from notification to file a claim, if they want to have the right to negotiate about the proposed future act.^[292] In some circumstances, three months will be insufficient time for the community to resolve questions around membership of the claim group. The relevant native title representative body may not have available resources to immediately commit to the claim. A rushed process may result in disputes and litigation at later stages of the claim.

Holding a meeting

225. The applicant for a claim is authorised at a meeting to which all members of the native title claim group have been invited. Notice of the meeting must be given to all members of the group, clearly indicating the nature of the business to be conducted.^[293] This may be done by letter, notices in local newspapers, local radio, and television or via local Aboriginal community organisations.^[294]

226. In Ward v Northern Territory^[295]O’Loughlin J indicated that the following matters were relevant to the question of whether an application had been effectively authorised by the claim group:

There is no information about that meeting. Who convened it and why was it convened? To whom was notice given and how was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded?

It may not be essential that these questions be answered on any formal basis such as in terms of the convening and conducting of a meeting in a commercial atmosphere, but the substance of those questions must be addressed.^[296]

227. A notice of an authorisation meeting should give fair notice of the particular business to be considered, and should be clearly, simply and directly expressed.^[297]

Problems arising after authorisation

Disputes and their resolution

228. During native title proceedings, disputes within the claim group may arise. Professor Larissa Behrendt and Dr Loretta Kelly have outlined a number of ways in which native title proceedings can trigger conflict between Indigenous people, including disagreements over the membership of the claim group, the boundaries of the claim area (which can be difficult to resolve when traditional law and custom allows for overlapping areas), and the decisions of the applicant or the representative body.^[298] The essential difficulty may be the requirement to fit Indigenous relationships with land and waters into an imposed non-Indigenous framework.^[299]

229. The adversarial system may cause disputes by framing claims as opposing or inconsistent when, under Aboriginal or Torres Strait Islander law and custom, the claims are related to each other and are overlapping.^[300] The support of a non-Indigenous party for one side in a dispute is not always constructive.^[301]

230. Disputes are characteristic of all property systems,^[302] and it has been suggested that conflict ‘is an indication of the continuing vigour of Aboriginal society’.^[303] At the same time, disputes are causing serious harm to individuals, families and communities;^[304] and being denied native title claim group membership causes great pain.^[305]

231. Representative bodies are responsible for promoting agreement and mediating between its constituents about the making of native title applications.^[306] If these efforts are unsuccessful, one legal option is to replace the applicant as provided by s 66B. A member or members of the claim group may seek the authorisation of the claim group to apply for an order that the member or members replace the applicant, on the grounds that the applicant is no longer authorised or has exceeded its authority.

232. The ALRC is interested in views as to whether appropriate dispute resolution options are available to claim groups, and whether s 66B is working as intended.

Where an applicant dies or is unable or unwilling to act

233. The s 66B procedure noted above is also available to a claim group wishing to replace an applicant on the grounds that a person who is the applicant, or is a member of the applicant, consents to his or her removal or replacement, or has died or become incapacitated.

234. In order to bring an application under s 66B, the member or members of the claim group must be authorised by the claim group to do so. Section 66B is ‘directed to maintaining the ultimate authority of the native title claim group’.^[307]

235. It is unclear whether an application to replace the current applicant must be made if a person who is a member of the applicant dies or is unable to act. There are decisions indicating that, in this situation, the applicant may continue to act.^[308] These judgments refer to the significant expense and delay associated with further authorisation procedures.^[309] For example, in one case the applicant estimated that the cost of holding a claim group meeting was $10,000–$20,000,^[310] and in another case, $13,000.^[311] There are other decisions indicating that if a member of the applicant dies, the applicant is no longer authorised and must return to the claim group for reauthorisation.^[312] However, if the claim group originally authorised the applicant to continue, even if a member dies or is incapacitated, then no further authorisation is required.^[313]

236. Because a group often chooses elders to be members of the applicant, and native title claims are usually lengthy, the death of a member of the applicant is not infrequent. It has been suggested that a requirement for further authorisation places undue burden and expense on the claim group.^[314] One alternative would be to allow the applicant to simply file a notice with the court indicating that a member of the applicant has died or is not longer willing to act. Another option would be to allow the claim group to appoint a corporation to represent the claim group.^[315]

237. The ALRC is interested in views as to whether the Native Title Act should require an applicant to return to the claim group for authorisation if a member of the applicant dies or is unable or unwilling to act.

Defects in authorisation

238. Until 2007, a defect in authorisation could be fatal to a claim,^[316] and it was unclear whether the position could be cured by a later authorisation.^[317] Section 84D of the Native Title Act was introduced to allow the court to hear and determine an application, even where there is a defect in authorisation.^[318] The court may make an order requiring an applicant to produce evidence that it is authorised.^[319] The court can make this order on its own motion, or on the application of a party or a member of a claim group.^[320] If an applicant is not properly authorised, a court may, ‘after balancing the need for due prosecution of the application and the interests of justice’, hear and determine the application or make other orders.^[321]

239. However s 84D is also used by members of claim groups to challenge the authorisation of the applicant, in the event of a dispute. Importantly, a person applying under s 84D does not need the authorisation of the claim group (unlike an application under s 66B).

240. The ALRC is interested in views as to whether s 84D is operating as intended.

Other issues

Cost

241. The cost of authorisation proceedings is sometimes raised in relation to both the initial authorisation meetings and later proceedings under s 66B. Holding an authorisation meeting can be costly because claim group members may live at some distance from each other and from the land claimed. Expenses include notification and advertising, travel costs, accommodation, hiring a venue and meals. These costs are sometimes born by the representative body, sometimes by claim group members themselves, and sometimes by respondent parties.

242. John Southalan has suggested that, while authorisation proceedings can be ‘time consuming, expensive and logistically challenging’, they may be necessary to ensure that a determination, agreement or other settlement is understood and accepted by a community. He notes that both governments and industries have acknowledged that native title processes should make room for Indigenous community decision-making. Time and resources invested at the authorisation stage may serve to establish clear decision-making processes, develop trust between group members and avoid misunderstandings and disputes at later stages of the claim.^[322]

243. The ALRC welcomes views as to whether the resourcing of authorisation processes is proportionate to the aim of ensuring that native title holders can participate in the decisions that affect them.

Scope of authorisation

244. Section 62A of the Native Title Act provides that, once authorised, the applicant may deal with all matters arising under the Act in relation to the application.^[323] This section is intended to ensure that those who deal with the applicant in relation to these matters can be assured that the applicant is authorised to do so.^[324] The claim group may empower the applicant to deal with other matters (such as Indigenous Land Use Agreements (ILUAs)), but this power is based on the principal-agent relationship between the claim group and the applicant, and not on authorisation under the Act.^[325]

245. It is not clear whether a claim group may authorise an applicant to act subject to restrictions. In one case, it was held that a claim group may authorise an applicant to act on the condition that those actions are in accordance with resolutions of the claim group.^[326] In another case, the submission that a claim group may direct the applicant in the performance of its duties was rejected.^[327]

246. A claim group may authorise an applicant to make decisions by majority.^[328] However there is also some uncertainty as to whether an applicant may make decisions by majority when the terms of the authorisation are silent on the issue.^[329]

Applicants and ILUAs

247. Section 251A of the Native Title Act regarding the authorisation of ILUAs is similar to s 251B regarding the authorisation of an applicant. Section 251A provides that native title holders may authorise an agreement using a traditional decision-making process, or if no such process exists, using a process agreed to and adopted by the group. Sections 251A and 251B are interpreted in a consistent way by the courts.^[330]

248. The Terms of Reference for this Inquiry specify that the ALRC is to consider whether the Native Title Act’s authorisation provisions impose barriers to access to justice on claimants, potential claimants or respondents. A person who authorises an ILUA is not necessarily a claimant or a potential claimant, so these Terms of Reference do not direct the ALRC to consider the authorisation of ILUAs. However the ALRC notes that it may be desirable for the two authorisation provisions to remain consistent.

Authorisation and joinder

249. This section of the Issues Paper has discussed two options for dealing with disputes regarding the authorisation of applicants—replacing the applicant under s 66B and challenging the authorisation of the applicant under s 84D. Another option for a member of a claim group who is dissatisfied with the action of an applicant or who considers that the applicant does not properly represent the claim group, is to join the proceedings as a respondent party. This option is discussed in the next section.