Applicant unable or unwilling to act

Recommendation 10–7           Section 66B of the Native Title Act 1993 (Cth) should provide that, where a member of the applicant is no longer willing or able to perform the functions of the applicant, the remaining members of the applicant may:

(a)      continue to act without reauthorisation, unless the terms of the authorisation provide otherwise; and

(b)     apply to the Federal Court for an order that the remaining members constitute the applicant.

10.84   Section 66B provides that a member or members of a claim group may seek an order that the applicant be replaced 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. Native title claims are usually lengthy, and a group often chooses elders to be members of the applicant. It is not infrequent for a member of the applicant to die, become incapacitated, or to be no longer willing to act.

10.85   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’.[104]

10.86   It is unclear whether an applicant remains authorised to act if a member of the applicant dies or is unable to act. As Logan J has noted, ‘there is a difference of views on that subject’.[105] 

10.87   There are decisions indicating that, in this situation, the applicant may continue to act.[106] These judgments refer to the significant expense and delay associated with further authorisation procedures.[107] 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.[108] The ALRC has been told that claimants generally do not take this approach, but wait for the next meeting to replace the applicant or rely on s 84D, which provides that the court may hear and determine the application, despite a defect in authorisation.

10.88   Cape York Land Council advised that ‘it is now common practice for original authorisation processes to include authorisation for the applicant to continue to act, even if one or more of the people constituting the applicant dies or is incapacitated’.[109] The Court has indicated that in this case, no reauthorisation is necessary.[110] However, it is likely that there are many claims in existence where the authorisation does not include that provision. Many stakeholders called for the Act to be amended to clarify that the applicant may continue without reauthorisation.[111] The ALRC recommends that the Act should be amended in this way.

10.89   Further, where the removal of a member of the applicant is not controversial or disputed, a simple and inexpensive procedure should be available to update the Register of Native Title Claims (which includes the name and address for service of the applicant).[112] In the Discussion Paper, amendments were proposed to allow a member of the applicant to be removed by filing a notice with the court.[113] Some stakeholders advised that such an approach may not offer sufficient procedural safeguards,[114] and might be misused by a member wishing to remove another member with whom they are in dispute. Accordingly, the ALRC recommends that a member of the applicant should not be removed until the court makes an order under s 66B of the Act, based on a review of documents filed with the court, such as a certified copy of a death certificate, signed consent from the person to be removed, or evidence of incapacity.