The powers and duties of the applicant

‘Matters … in relation to the application’

10.21   Section 62A of the Native Title Act provides that the applicant ‘may deal with all matters arising under this Act in relation to the application’.[18] The phrase ‘matters arising under the Act’ should not be read narrowly,[19] and includes filing the application, applying for leave to amend the application,[20] filing a notice of change of solicitors,[21] and applying for leave to discontinue the claim.[22] Native title claims are representative actions, and therefore require leave of the court to discontinue.[23]

10.22   While the applicant, and only the applicant, may apply for leave to amend or discontinue the claim, the court has an unfettered discretion to grant or refuse leave.[24]

10.23   There has been a trend towards greater scrutiny of the claim group’s involvement in native title claims. This can be seen in statutory amendments requiring first, in 1998, that the applicant be authorised by the claim group, and second, in 2007, that the applicant must swear an affidavit setting out details of the process of authorisation.[25] In the courts, early judgments simply asserted that s 62A gave the applicant power to deal with all matters arising under the Act in relation to the application.[26] In later cases the court is more likely to indicate that, in exercising its discretion, the court will take into account whether the applicant has consulted with the claim group, and the views of the claim group.[27]

10.24   While the law does not require the applicant to obtain the consent of the claim group for all dealings in relation to the application, Adjunct Associate Professor John Southalan commented:

it would be a brave/myopic lawyer who seeks to enact outcomes of significance for the broader group (eg, commence/settle/amend a native title claim) without assurance that the broader group understand, had the opportunity to deliberate, and have specifically agreed to that outcome.[28]

Indigenous Land Use Agreements

10.25   The Note to Native Title Act s 62A indicates that this section ‘deals only with claimant applications and compensation applications’, and that provisions dealing with Indigenous Land Use Agreements (ILUAs) are elsewhere. The applicant is a party to an area ILUA[29]  but these agreements cannot be registered, and are therefore not binding, unless they have been authorised by the entire claim group.[30] While it is standard practice for an ILUA to be signed by all members of the applicant, the Federal Court has indicated that the signatures of the members of the applicant are not required.[31]

Future act agreements

10.26   Section 62A makes no reference to future act agreements made pursuant to the Native Title Act pt 2 div 3 (sometimes called s 31 agreements or right to negotiate agreements). While it is untested, it is not likely that s 62A is the source of the applicant’s authority to enter future act agreements, as future act agreements are not clearly ‘matters arising under this act in relation to the application’. The Act provides that the applicant is a negotiation party and must negotiate with a view to reaching agreement to the doing of the act that affects native title.[32] If the negotiating parties reach an agreement, it has the effect of a contract, and is binding on any other person included in the native title claim group.[33]

10.27   The Native Title Act does not contain any explicit requirement for the approval of the claim group. However the practice of the National Native Title Tribunal (NNTT) suggests that some level of claim group consent is required.

10.28   Currently, if all of the members of the applicant do not sign a future act agreement, whether because of remoteness, incapacity, dispute or other reason, an application may be made to the NNTT for a consent determination. When the NNTT considers whether consent to a future act has been properly given by the native title party (the applicant, s 30(1)), the NNTT takes into account ‘whether the agreement has been endorsed by the wider claim group, or is of a type to which the claim group has previously consented’.[34] The NNTT has also indicated that the consent should be given in accordance with the decision-making procedures of the group:

the Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision making processes of the native title claim group. The fact that a representative Aboriginal and Torres Strait Islander body is involved in assisting the native title party (s 202 NTA) would add weight to a decision that a consent determination is appropriate …

The Tribunal can see no impediment to proceeding to make a consent determination where the consent is given by the native title party collectively in accordance with its agreed procedures (including traditional law and custom).[35] (emphasis in original)

10.29   One representative body advised the ALRC:

it is generally the case that the applicant, and its individual members, understand the limits of their authority, even if it is not explicitly and formally set out, for example, major future act agreements are not likely to be entered into without express claim group consent or the consent of the relevant common law holders in accordance with traditional law and custom.[36]

10.30   One stakeholder favoured an amendment to allow third parties to make assumptions about the authority of the applicant, such as the indoor management rule, consistent with the assumptions that can be made about the authority of directors under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).[37] However, the applicant’s role is not the same as that of company directors. This approach would not allow claim groups to retain decision-making power within the group or to place that power in a committee or working group, rather than the applicant.

10.31   Another approach would be to amend the Act to require the approval of the claim group for all future act agreements, which would be consistent with the post-determination requirement for claim group approval of native title decisions in the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)reg 8(1)(b). This Inquiry’s Terms of Reference, which require a focus on authorisation of the applicant, would not encompass such a recommendation. A statutory requirement for claim group approval might more closely approximate the guarantee of free, prior and informed consent required by the UN Declaration on the Rights of Indigenous People.[38] On the other hand, such a requirement might be inconvenient for some groups, particularly those whose membership is geographically scattered and who frequently make future act agreements, and for the parties who deal with them.

10.32   The ALRC has not consulted on such an approach and makes no comment on its advisability.

10.33   A number of stakeholders have pointed to the importance of allowing claim groups and their legal representatives the flexibility to tailor arrangements to the specific circumstances of the group.[39] Similarly, Professor Marcia Langton stated ‘a “one size fits all” approach is … not tenable for negotiation and agreement-making in Australia’.[40] The ALRC therefore recommends that the claim group should be able to make their own arrangements, either to authorise the applicant to agree to future acts without further approval, with conditions, or to withhold this authority—see Recommendation 10–4 below.

10.34   Regardless of the terms of the authorisation, it is likely that the applicant has fiduciary obligations to the native title group (the duties of the applicant are discussed further below).

Agreements under other statutes

10.35   Other statutes relating to mining and heritage create a role for the applicant (usually described as the ‘registered native title claimant’).[41] These do not usually require the applicant to have the specific authority of the claim group. Again, in performing these functions, the applicant is likely to have fiduciary obligations.

Can the applicant appoint an agent?

10.36   The Association of Mining and Exploration Companies asked this Inquiry to consider whether an applicant can authorise an agent to act on its behalf, and what powers can be delegated to the agent.[42]

10.37   The Native Title Act specifies that the applicant is to exercise the powers created by ss 29-31, and makes no reference to the possibility of those powers being delegated to another. If, as Reeves J has suggested, the applicant is an agent for the claim group,[43] then the applicant must act personally and not delegate its authority without the express or implied authority of the claim group.[44]