If a member of the applicant is unable or unwilling to act

10.42   Section 66B provides that a member or members of a claim group may seek an order that the applicant be replaced on the grounds that a person who is the applicant, or is a member of the applicant, consents to his or her removal or replacement, or has died or become incapacitated. Native title claims are usually lengthy, and a group often chooses elders to be members of the applicant. It is not infrequent for a member of the applicant to die, become incapacitated, or to be no longer willing to act.

10.43   In order to bring an application under s 66B, the member or members of the claim group must be authorised by the claim group to do so. Section 66B is ‘directed to maintaining the ultimate authority of the native title claim group’.^[46]

10.44   It is unclear whether an application to replace the current applicant must be made if a person who is a member of the applicant dies or is unable to act. There are decisions indicating that, in this situation, the applicant may continue to act.^[47] These judgments refer to the significant expense and delay associated with further authorisation procedures.^[48] There are other decisions indicating that if a member of the applicant dies, the applicant is no longer authorised and must return to the claim group for reauthorisation.^[49] The ALRC has been told that claimants generally do not take this approach, but wait for the next meeting to replace the applicant or rely on s 84D, which provides that the court may hear and determine the application, despite a defect in authorisation.

10.45   Cape York Land Council advised that ‘it is now common practice for original authorisation processes to include authorisation for the applicant to continue to act, even if one or more of the people constituting the applicant dies or is incapacitated’.^[50] The Court has indicated that in this case, no reauthorisation is necessary.^[51] However, it is likely that there are many claims in existence where the authorisation does not include that provision. Stakeholders have called for the Act to be amended to clarify that reauthorisation is not necessary.^[52]

10.46   The ALRC considers that where the removal of a member of the applicant is not controversial or disputed, a simple and inexpensive procedure should be available. The group should be able to file a notice with the court indicating that a member of the applicant has died or is no longer willing or able to act.

10.47   Some applicants are structured to represent family groups, and the terms of the authorisation include a succession plan—they provide for the replacement of a member of the applicant with another person in that member’s family. In these situations, simply removing a member would leave a family unrepresented on the applicant. ^[53] The Native Title Act should acknowledge and encourage the use of succession planning.

10.48   There may be concerns that allowing a member of the applicant to be removed without the supervision of the court at the time of the replacement would leave room for dishonest dealings. It is the duty of the solicitor on the record to take steps to ensure that the court is not misled.^[54]