Authorisation, the applicant and governance

10.38   While some native title claim groups have a long history of interaction with government agencies and third parties, and have developed sophisticated structures to manage these interactions, others have had few opportunities to make decisions about matters that affect them, particularly regarding land. For the second group, the authorisation of an applicant is not merely a statutory requirement for a valid application, but is an opportunity for a group to formalise its procedures and develop its governance structures and skills.

10.39   Claim groups do not generally invest full decision-making authority in the applicant, but expect the applicant to bring important decisions back to the group and to follow the directions of the group. A variety of decision-making structures have been adopted.

10.40   Some claim groups establish a decision-making body and require the applicant to carry out the decisions made by that authority. The Social Justice Commissioner described an effective and culturally appropriate decision-making structure adopted by the Quandamooka people:

This group of twelve family representatives advised the single named applicant during the native title negotiations. Decisions by the applicant required the mandate of the family representatives, who agreed on issues by consensus. Any issues that were disputed and could not be resolved by the group of family representatives were taken to the Council of Elders. The Council of Elders comprises twelve female Elders and twelve male Elders who represent each of the family groups and apical ancestors. Elders must be acknowledged as such by their peers before they are accepted on to the Council of Elders.^[45]

10.41   The Githabul people also authorised one applicant and established a steering committee whose role was to ‘direct and assist the applicant in the matters relating to the native title proceedings’.^[46] The applicant was held to have the authority of the group to discontinue, based on a resolution of the steering committee rather than the entire group.^[47]

10.42   In Cape York, a claim known as Cape York United Number 1 Claim, has been made on behalf of nine groups of traditional owners. The applicant was authorised on the basis that the people who make up the applicant do not make decisions with regard to land or waters. Such decisions are to be made by the traditional owners for the particular area according to law and custom.^[48]

10.43   Other groups retain decision-making power for the whole group. A member of the applicant for the Ngarluma and Yindjibarndi People described the relationship between the group to the court this way:

He said there is always discussion and consultation between members of the claim group both before and during the meeting. He said it is always a group decision. Young people help the old people by explaining ‘white fella’ laws to them. This, he said, is the way of making decisions under their traditional laws and customs. It is not just up to individual applicants to go their own way and make a separate decision. They must do what the group decides. Community meetings, he said, are accepted by the Ngarluma and Yindjibarndi People as the proper way to make decisions.^[49]

10.44   Similarly, in KK v Western Australia, the Nyul Nyul claim groups passed resolutions instructing the applicant to discontinue their claims, although the applicant is not obliged to seek the authority of the claim group to do so.^[50]

10.45   Also in Western Australia, the Yaburara and Mardudhunera peoples established a corporation to facilitate negotiations with industry. They told the Court that the entire group discusses proposals and informs the corporation’s committee of their decision. The committee tells the applicant what to do.^[51]

10.46   Queensland South Native Title Services reported that decisions to compromise a claim or endorse a consent determination are dealt with at a claim group meeting, not by the applicant:

Claim group meetings are, for traditional owners, an important feature of participatory decision-making through the principle of free, prior and informed consent, and inherently linked to the fundamental right of self determination.^[52]

10.47   As the National Native Title Council noted:

A native title application in relation to the recognition of native title includes the pleading of the name and nature of the group, its rules of membership, the rights and interests claimed and the traditional boundaries of the society or group concerned. This assists in the process of self-determination and facilitates a lessening of internal dissension and disputes with neighbouring groups if properly done.^[53]

10.48   The recommendations in this chapter are intended to support claim groups as they develop their own governance structures, work within the requirements of Australian law and negotiate with third parties. Establishing structures and skills during the pre-determination stage should leave groups better placed to manage their rights and interests in the post-determination stage.