10.1 An application for a native title determination, or for compensation for extinguishment or impairment of native title, can only be lodged by an applicant—that is, a person or group of people who have been authorised by the group to make the application. The authorisation provisions of the Native Title Act 1993 (Cth)(‘Native Title Act’) are intendedto ensure that the application is made with the consent of the claim group. The group is also given the power to remove and replace an applicant, thus contributing to the ongoing legitimacy of the applicant.
10.2 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. Some groups establish separate decision-making bodies, such as steering committees or working groups. 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.
10.3 The ALRC recommends that groups should be able to use a traditional decision-making process or a decision-making process agreed to and adopted by the group, to authorise an applicant. The Government should consider amending other provisions of the Native Title Act regarding decision-making, consistent with this recommendation.
10.4 Many groups include in their authorisation of an applicant specific directions or constraints on the applicant’s authority. The legal status of these directions is not clear. The Native Title Act should be amended to clarify that the claim group may define the scope of the authority of the applicant.
10.5 Currently, claim groups may authorise an applicant to act by majority, but where the terms of the authorisation are silent, an applicant must act jointly. The ALRC recommends that this default position should be reversed to provide that, where the terms of the authorisation are silent, the applicant may act by majority. This recommendation is intended to address the situation where the group has directed the applicant to take some action, but only some members of the applicant are willing to act on the direction.
10.6 It is unclear whether an applicant remains authorised to act if a member of the applicant dies or is unable to act. The Native Title Act should provide that the remaining members of the applicant may continue to act without reauthorisation, unless the terms of the authorisation provide otherwise, and may apply to the Federal Court for an order that the remaining members constitute the applicant.
10.7 Sometimes an applicant includes a member of each family group, and the authorisation provides for the replacement of a member who is unable to act, with a specified person from the same family. The Native Title Act should provide that, in such circumstances, the applicant may apply to the Federal Court for an order that the member be replaced by the specified person, without requiring reauthorisation.
10.8 Finally, the Native Title Act, and some state and territory legislation, creates opportunities for the applicant to receive funds that are intended for the native title group. The Native Title Act should be amended to provide that a member of the applicant must not obtain an advantage or benefit at the expense of the common law holders.