The purpose of the authorisation provisions

10.15   The authorisation provisions were introduced into the Native Title Act in 1998.[8] Before this, any member of a claim group could apply for a determination of native title. This resulted in large numbers of conflicting and overlapping claims. The purpose of the authorisation provisions is to ensure that those who bring applications for determinations have the authority of the group to do so.[9] French J described authorisation as

a matter of considerable importance and fundamental to the legitimacy of native title determination applications. The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title.[10]

10.16   The National Native Title Council said the authorisation process is ‘fundamentally important to the integrity of the native title claims process’ as it ensures that claims are lodged with the consent of the traditional owners.[11] Similarly, Mansfield J noted that ‘proper authorisation is fundamental to the legitimacy of native title applications’.[12] The existence of a mechanism to remove the applicant if it exceeds its authority contributes to the ongoing legitimacy of the applicant, as the applicant is ‘subject to the ongoing scrutiny of the members of the claim group in respect of the manner of the exercise of that authority’.[13]

10.17   Section 62A sets out the power of applicants, and is discussed further below. The Explanatory Memorandum to the Bill that inserted s 62A indicated that the section ‘ensures that all those who deal with the applicant in relation to matters arising under the NTA can be assured that the applicant is authorised to do so’.[14]

10.18   However, in explaining the purpose of s 62A, the courts have focused not on the benefits to third parties, but on the desirability of avoiding overlapping claims. French J  made this point in 2002:

It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so.  Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority.  The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or State Governments of native title rights and interests.  Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground.[15]

10.19   This passage has been cited at least 17 times in judgments of the Federal Court. Overlapping claims, while still an issue, have significantly reduced since the 1998 amendments[16] that introduced both the authorisation provisions and the registration test.

10.20   After the 1998 amendments, there was some initial uncertainty about what the Act required with regard to holding an effective authorisation meeting. However there is now a settled body of law in this respect,[17] and the authorisation requirements are well understood and widely supported by stakeholders. There continues to be challenges to the actions of applicants, and applications for the replacement of applicants. These do not necessarily indicate flaws in the legal framework. Native title claim groups must make a range of important decisions about matters including the correct composition of the group, the boundaries of the area claimed, and the nature and scope of the rights and interests claimed. They may also have to deal with proponents who wish to obtain agreement to future acts—acts that affect (and may extinguish) native title. These decisions can be difficult and contested and it would be unrealistic not to expect conflict within and between groups. Challenges to the authorisation of an applicant may be a symptom of such conflict. Another symptom might be an application by a member of the group for joinder as a respondent.