Scope of authorisation

Recommendation 10–5           The Native Title Act 1993 (Cth) should be amended to clarify that the claim group may define the scope of the authority of the applicant.

10.62   As noted earlier, s 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.[68] Claim groups have been disinclined to hand over all decision-making responsibility to the applicant. Many include in their authorisation specific directions or constraints on the applicant’s authority. For example, in Queensland, the Wulli Wulli Native Title Group authorised the applicant on a number of conditions, including:

  • that members of the applicant represent the whole group, not just their own family;

  • that the applicant may agree to reduce the area of the claim without further authorisation;

  • that the applicant must ensure that cultural heritage work is allocated fairly; and

  • that the applicant may negotiate with respect to future acts, but must consult with elders before executing any agreement.[69]

10.63   The legal status of the conditions and instructions included in the authorisation given to an applicant is not clear.[70] If the applicant does not act in accordance with the instructions, the claim group may replace the applicant on the grounds that ‘the person has exceeded the authority given to him or her by the claim group to make the application’.[71] The words ‘exceeded the authority’ suggest that the group may be able to define or limit the scope of the applicant’s authority. In Daniel v Western Australia (Daniel), French J said:

If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group.[72]

10.64   However in this case, the applicant was replaced on the basis that he was no longer authorised by the claim group,[73] not on the basis that he exceeded his authority, so these comments are obiter dicta. This approach has been endorsed in later judgments, but it is arguable that these comments were also obiter.[74]

10.65   In Weribone on behalf of the Mandandanji People v Queensland, the claim group had not authorised the applicant to act by majority, and Logan J held that the applicant could not so act. He also said that:

insofar as the submission carried with it anything of the notion that the native title claim group may in some way direct how the applicant is to carry its business of dealing with ‘all matters arising under this Act in relation to the application’, I reject that submission. [75]

10.66   On the other hand, in Anderson on behalf of the Wulli Wulli People v Queensland, Collier J said:

I do not consider that s 61(2)(c) ought be interpreted in such a way as to remove the autonomy of the native title claim group itself to place a condition on the manner in which the applicant can make effective decisions.

10.67   In Anderson, the claim group had authorised the applicant to make decisions by majority, and the applicant was allowed to so act.[76] Similarly, in KK (deceased) v Western Australia, Barker J found that ‘the authority of the named applicants to act or refrain from acting in relation to the claim was subject to any direction from the claim group from time to time’.[77]

10.68   There is no Full Court authority on this matter, and it is appropriate for the Act to be clarified on this issue.

10.69   As noted earlier, the purpose of the authorisation provisions is to ensure that the application is brought with the authority of the claim group, allowing the group to supervise proceedings and thus giving legitimacy to the proceedings.[78] It would further this purpose to amend the Native Title Act to provide that the claim group may define the scope of the authority of the applicant. Such an amendment may be as simple as inserting the words ‘subject to the terms of its authorisation’ in s 62A. This approach creates the flexibility to accommodate differences between claim groups, and ensures that the native title claim will only be dealt with in accordance with the claim group’s wishes.[79]

10.70   Such an amendment would also be consistent with the general law regarding the principal and agent relationship: ‘a principal is only bound by acts of the agent which are within the agent’s authority as conferred by the principal’.[80] Reeves J has indicated that (at least when negotiating an ILUA), the applicant is ‘in much the same position as an agent concluding a contract on behalf of a principal’.[81]

Scope of authority and the right to negotiate

10.71   The ALRC acknowledges that Recommendation 10–5 may raise concerns for those stakeholders who sought amendments that would allow third parties to make assumptions about the authority of the applicant in the context of agreement making.[82] These stakeholders raised concerns that permitting claim groups to define the scope of the applicant’s authority could create uncertainty.[83] However, as discussed earlier, it is not presently certain that the applicant has unfettered authority to enter into future act agreements without reference to the claim group. While the Native Title Act requires claim groups to authorise an applicant to act on their behalf in relation to both the claim and future act agreements, it does not require the claim group to delegate all decision-making powers to the applicant. In this respect, the members of the applicant have a different role from that of directors of a corporation.

10.72   Clarity and certainty may best be obtained by seeking the disclosure of the limits on the scope of the applicant’s authority when entering into negotiations.

10.73   In the Discussion Paper, the ALRC proposed that limits on the authority of the applicant to enter into agreements with third parties should be placed on a public register.[84] There was some support for this approach,[85] on the basis that it would provide transparency for third parties.

10.74   However the ALRC has not proceeded with this proposal. A register would create costs for both government and native title claim groups.[86] Some considered the proposal paternalistic and having the potential to foster distrust.[87] There are other ways of ensuring that third parties are aware of any limits on the authority of the applicant. Third parties wishing to enter into an agreement with a group can seek a letter from the applicant’s legal representative, confirming the scope of the applicant’s authority, or may use negotiation protocols that outline the authority of each party.[88]

Consequences for breach of authority

10.75   In the Discussion Paper, the ALRC asked if the Native Title Act should contain a remedy (other than the replacement of the applicant) for a breach of a condition of authorisation.[89] One stakeholder thought that disqualification from being a member of the applicant might be an appropriate remedy.[90] Stakeholders largely indicated that there should be no statutory remedy,[91] on the basis that the process should not become ‘more complex, adversarial, and expensive to administer’.[92] The ALRC considers that while disqualification would sometimes be an appropriate response to a breach, creating a statutory regime would be likely to create complexity and expense. The claim group may, of course, withdraw the authorisation of the person if it wishes.

10.76   This is not to suggest that there would be no consequences for breach of a condition of authorisation. If the conditional authority given to the applicant relates to acts mediated by legal representatives or courts—for example, limits on the applicant’s ability to change legal representatives or discontinue a claim—then the legal representative could decline to act, or the court could refuse to exercise its discretion if the applicant does not have the appropriate authority. As the NNTT noted, ‘it is the duty of the solicitor on the record to ensure any instructions relating to limitations of authority are complied with’.[93]

10.77   Statutory confirmation that the claim group may define the scope of the applicant’s authority would put third parties on notice that they should seek disclosure of the scope of authority. Negotiations would then proceed on an appropriate footing.

10.78   The NNTT indicated that ‘clarification of scope of the applicant’s authority and any group imposed conditions would assist the Tribunal when conducting inquiries and making determinations on future act matters’.[94]

10.79   The Act already permits an applicant to be replaced on the ground that it has exceeded its authority.[95] This is likely to be the appropriate response when an applicant does not enter into an agreement when directed to do so by the group.[96]

10.80   Some groups have begun to place conditions on the applicant’s authority with regard to the applicant’s handling of funds. This is a useful way of clarifying the applicant’s duties and should serve to inform both the applicant and the claim group. Should the applicant fail to account for funds received, one response would be to remove the applicant. This would not assist in the recovery of funds. Other remedies may be available in both the law of agency and equity, including account of profits and restitution.[97]