Scope of authorisation

Proposal 10–3          The Native Title Act should be amended to clarify that the claim group may define the scope of the authority of the applicant.

Question 10–1          Should the Native Title Act include a non-exhaustive list of ways in which the claim group might define the scope of the authority of the applicant? For example:

(a)      requiring the applicant to seek claim group approval before doing certain acts (discontinuing a claim, changing legal representation, entering into an agreement with a third party, appointing an agent);

(b)     requiring the applicant to account for all monies received and to deposit them in a specified account; and

(c)      appointing an agent (other than the applicant) to negotiate agreements with third parties.

10.21   Section 62A of the Native Title Act provides that, once authorised, the applicant may deal with all matters arising under the Act in relation to the application.[21] This provision is intended to ensure that those who deal with the applicant in relation to these matters can be assured that the applicant is authorised to do so.[22]

10.22   It is not clear whether a claim group may authorise an applicant to act subject to conditions. The reference in Native Title Act s 66B(1)(a)(iv) to the replacement of an applicant, on the grounds that ‘the person has exceeded the authority given to him or her by the claim group to make the application’, suggests that the group may be able to define or limit the scope of the applicant’s authority. In Daniel v Western Australia (Daniel), French J said:

If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group.[23]

10.23   However in Daniel, the applicant was replaced on the basis that he was no longer authorised by the claim group,[24] not on the basis that he exceeded his authority, so these comments are obiter. This approach has been endorsed in later judgments, but it is arguable that these comments were also obiter.[25]

10.24   In Anderson on behalf of the Wulli Wulli People v Queensland, Collier J said ‘I do not consider that s 61(2)(c) ought be interpreted in such a way as to remove the autonomy of the native title claim group itself to place a condition on the manner in which the applicant can make effective decisions’. In this case, the claim group had authorised the applicant to make decisions by majority.[26]

10.25   However, in Weribone on behalf of the Mandandanji People v Queensland, the submission that a claim group may direct the applicant in the performance of its duties was rejected.[27] This case also concerned the question of whether an applicant can make decisions by majority.

10.26   There is no Full Court authority on this matter, and it is appropriate for the Act to be clarified on this issue. A number of stakeholders called for the Act to be clear that the claim group may define the scope of authority of the applicant,[28] or for clarity on this issue.[29] Two stakeholders cautioned that amendments should not be made that are complex or prescriptive or contribute to disputes as to what has and has not been authorised.[30]

10.27   There is a need for a legal personality to take responsibility for a native title claim. However, native title is a communal right and the ALRC considers that if the claim group wishes to retain decision-making power, or to disperse power—for example, between the claim group, the applicant, a bargaining agent, and a working group—it should be permitted to do so. For example, it was noted in Daniels that a claim group member and applicant said

there is always discussion and consultation between members of the claim group both before and during the meeting. He said it is always a group decision. Young people help the old people by explaining ‘white fella’ laws to them. This, he said, is the way of making decisions under their traditional laws and customs. It is not just up to individual applicants to go their own way and make a separate decision. They must do what the group decides. Community meetings, he said, are accepted by the Ngarluma and Yindjibarndi People as the proper way to make decisions.[31]

10.28   Some groups already use a working group, rather than the applicant, for decision-making, and require the applicant to seek claim group approval before doing certain acts. Other groups have placed conditions on an applicant’s authority which require it to account for funds received on behalf of the group.

10.29   These initiatives indicate the development of governance structures that are suited to the needs of particular groups. The ALRC’s proposal ensures that those practices can be formalised. Consequential amendments to s 62A may be necessary to acknowledge that, while the applicant may deal with all matters arising under the Act, it does so subject to the conditions of its authorisation.

Consequences for acting outside authority

Question 10–2          What remedy, if any, should the Native Title Act contain, apart from replacement of the applicant, for a breach of a condition of authorisation?

10.30   One representative body suggested that amendments to the Act should not only permit the group to define the scope of the applicant’s authority, but should ‘identify the consequence of breach of limits or conditions on authority’.[32] The ALRC is exploring options in this regard, but, as the National Native Title Council (NNTC) cautioned, it is important to ensure that the process does not become more ‘complex, adversarial and… expensive to administer’.[33]

10.31   It may be that different consequences should follow, depending on the type of condition breached. Where the conditional authority given to the applicant relates to acts mediated by legal representatives or courts—for example, limits on the applicant’s ability to change legal representatives or discontinue a claim—then the legal representative or court can decline to act if the applicant does not have the appropriate authority. In these cases no other remedy would be necessary.

10.32   The Act already permits an applicant to be replaced on the ground that it has exceeded its authority.[34] This is likely to be the appropriate response when an applicant does not enter into an agreement when directed to do so by the group.[35]

10.33   As noted earlier, some groups have begun to place conditions on the applicant’s authority with regard to the applicant’s handling of funds. This is a useful way of clarifying the applicant’s duties and should serve to educate both the applicant and the broader community. Should the applicant fail to account for funds received, one response would be to remove the applicant. This would not, of course, assist in the recovery of funds. This issue is discussed further below.

10.34   The ALRC is interested in views as to whether the Native Title Act should include a remedy, beyond replacement of the applicant, for a breach of a condition of authorisation.

Limits on the authority to enter into agreements

Proposal 10–4          The Native Title Act should provide that, if the claim group limits the authority of the applicant with regard to entering agreements with third parties, those limits must be placed on a public register.

10.35   Some groups may wish to limit the applicant’s authority to enter into an agreement with third parties. For example, in Roe v Western Australia, the group passed a resolution that the applicant must not enter into ‘any agreement that affects the land and waters covered by the GJJ claim unless authorised to do so by the GJJ claim group’.[36] This poses difficult questions. First, it is not clear what the utility of such a limitation would be. An ILUA cannot be registered without the authorisation of the claim group,[37] so the claim group already has the final say on these agreements. Such a limitation might prevent the entry into a s 31 agreement regarding a future act,[38] but would not necessarily prevent the future act, as the proponent may apply to the Tribunal for a determination if no agreement is made.[39]

10.36   Second, such a limitation could create uncertainty for third parties as to the authority of the applicant to enter an agreement.[40] This could be dealt with by requiring an applicant to disclose any limits to its authority to enter agreements with third parties, for example, by placing them on a register. The Register of Native Title Claims, which includes the name and address of the applicant, may be an appropriate place.

10.37   Third, if an applicant entered into an agreement, when not authorised to do so, a question might arise as to whether the agreement is enforceable. Whether the third party had notice of the applicant’s limited authority would be relevant.