10.1 The Terms of Reference ask the ALRC to consider whether any barriers to access to justice are imposed by the Native Title Act’sauthorisation provisions to claimants, potential claimants and respondents. The authorisation provisions of the Actrequire a claim group to authorise a person or persons (known as the applicant) to make an application for a native title determination. The provisions create a legal entity to perform the functions associated with the claim. They are also intended to ensure that the application is made with the approval of the claim group.
10.2 Access to justice includes access to courts and lawyers, but also information and support to identify, prevent and resolve disputes. It can also encompass both procedural rights and access to the resources necessary to participate fully in the legal system.
10.3 In this chapter, the ALRC proposes some changes to the authorisation provisions of the Native Title Act to
- allow a claim group to choose its decision-making process;
- clarify that the claim group can define the scope of the authority of the applicant;
- simplify the procedure where a member of the applicant is unable or unwilling to act; and
- clarify that the applicant may act by majority unless the terms of the authorisation provide otherwise.
10.4 This chapter also considers whether the authorisation provisions should be altered to ensure that native title benefits are held for the benefit of the claim group. Finally, this chapter considers how the identification of claim group members, and disputes about claim group composition, affect access to justice for claimants, potential claimants and respondents.