Proposal 10–1 Section 251B of the Native Title Act should be amended to allow the claim group, when authorising an application, to use a decision-making process agreed on and adopted by the group.
Proposal 10–2 The Australian Government should consider amending s 251A of the Native Title Act to similar effect.
10.10 The process for authorising an applicant is set out in s 251B. If the claim group has a traditional decision-making process that must be complied with in relation to authorising similar matters, the group must use that process to authorise an applicant. It may not choose to use a different, perhaps more straightforward, process.
10.11 If a group does not have a traditional decision-making process for ‘authorising things of that kind’, it must use a process of decision-making that has been agreed to and adopted by the group.
10.12 The requirement to use a traditional decision-making process, where it exists, can create problems when it is unclear if such a process exists, and what it is. The lack of clarity is sometimes a result of the community having been denied the opportunity to make decisions about their land for many generations.
10.13 Where the group has a traditional decision-making process, it may not be one that is suited to making decisions in the native title context. Adapting the process for use in native title procedures can be complex and time consuming. The group may wish to change the decision-making process to be more inclusive.
10.14 Where the group does not have a traditional decision-making process it may be reluctant to declare that fact, when seeking recognition of rights and interests ‘possessed under traditional laws and customs’.
10.15 The ALRC proposes that s 251B should simply provide that a claim group must use a process of decision-making agreed to and adopted by the group. The claim group would still be able to use its traditional decision-making process if it wished. If it did not have such a process, or preferred another process, it could do so.
10.16 Allowing the group to choose its own decision-making process promotes the autonomy of the group. It ‘maintains the ultimate authority of the claim group or native title holders’.
10.17 For some groups, the process of choosing a decision-making process will always be a difficult one. For example, the choice between one vote per family group (which can disempower members of large families) or one vote per adult (which can disempower members of small families) can be fraught. As AIATSIS noted, there is logical circularity in employing a decision-making process to choose a decision-making process. The ALRC considers that the proposed amendment will remove some, but not all, of the difficulties of choosing a decision-making process. The alternative, of statutory prescription of a decision-making process, might remove some difficulties but would not promote the autonomy of claim groups.
10.18 Stakeholders, including governments and representative bodies, supported such a change.
10.19 Section 251A of the Native Title Act regarding the authorisation of Indigenous Land Use Agreements (‘ILUAs’) is similar to s 251B regarding the authorisation of an applicant. Section 251A provides that native title holders may authorise an agreement using a traditional decision-making process, or if no such process exists, using a process agreed to and adopted by the group. Sections 251A and 251B are interpreted in a consistent way by the courts.
10.20 The Terms of Reference for this Inquiry specify that the ALRC is to consider whether the Native Title Act’s authorisation provisions impose barriers to access to justice on claimants, potential claimants or respondents. A person who authorises an ILUA is known as a party, rather than a claimant, so these Terms of Reference do not direct the ALRC to consider the authorisation of ILUAs. However the ALRC notes that it may be desirable for the two authorisation provisions to remain consistent.
Ibid s 251B.
National Native Title Council, Submission 16; Cape York Land Council, Submission 7; Just Us Lawyers, Submission 2. See, eg, Butchulla People v Queensland (2006) 154 FCR 233; Holborow v Western Australia 2002 FCA 1428.
Department of Justice, Victoria, Submission 15.
Butchulla People v Queensland (2006) 154 FCR 233, 30. In Butchulla, the group changed their decision-making process so that elders no longer had the final say. See also National Native Title Council, Submission 16.
Susan Phillips, ‘The Authorisation Trail’ (2000) 4 Indigenous Law Bulletin 13.
Law Society of Western Australia, Submission 9.
Just Us Lawyers, Submission 2.
AIATSIS, Submission 36.
South Australian Government, Submission 34; Kimberley Land Council, Submission 30; NSW Young Lawyers Human Rights Committee, Submission 29; Queensland South Native Title Services, Submission 24; Western Australian Government, Submission 20; North Queensland Land Council, Submission 17; A Frith and M Tehan, Submission 12; Law Society of Western Australia, Submission 9; Cape York Land Council, Submission 7.
Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150, .