Succession planning

Recommendation 10–8           The authorisation of an applicant sometimes provides that if a particular member of the applicant becomes unwilling or unable to act, another specified person may take their place.

Section 66B of the Native Title Act 1993 (Cth) should provide that, in this circumstance, the applicant may apply to the Federal Court for an order that the member be replaced by the specified person, without requiring reauthorisation.

10.90   Sometimes an applicant is structured to include a member of each family group, or clan. In this situation, allowing the applicant to continue to act when one member is unable or unwilling to do so would leave a family unrepresented on the applicant.[115] Some claim groups have provided for this eventuality by including a succession plan in the original authorisation. That is, they provide for the replacement of a member who is unable or unwilling to act with another specified person, usually from the same family.[116]

10.91   Even where family groups have nominated individual members of the applicant, the applicant must be authorised by the entire group, and the applicant must act on behalf of the entire group.[117]

10.92   The Native Title Act should acknowledge and encourage the use of succession planning. It maintains the authority of the group and the representativeness of the applicant, and reduces the need for expensive and unnecessary authorisations. The ALRC recommends that if a succession plan is in place, the applicant should be able to apply to the Federal Court for an order that the member who is unable or unwilling to act be replaced by the person specified in the original authorisation. The replacement should not be effective 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.

10.93   This proposal received support,[118] although stakeholders noted that it would be important for the terms of the authorisation to be very clear,[119] and that the appointment of the replacement person should not be effective until the Court has made an order under s 66B.[120]