21.10.2014

What is authorisation?

10.5       The authorisation provisions were introduced into the Native Title Act in 1998.[2] 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. Now, to make an application for a determination of native title, a person or group of people must be authorised by all the people who hold the native title claimed.[3] The person or group of people is known as ‘the applicant’, and the people who hold the native title are known as ‘the native title claim group’.

10.6       Applicants for compensation must also be authorised. The Native Title Act provides for applications for compensation for the extinguishment or impairment of native title arising from validation of certain past, intermediate or future acts.[4]To make an application for compensation, a person or group of people must be authorised by all the people who claim to be entitled to the compensation. The person or group of people is ‘the applicant’, and the people who claim to be entitled to the compensation are ‘the compensation claim group’. The commentary in this section of the Discussion Paper refers to both native title claims and compensation claims, unless otherwise indicated.

10.7       The Native Title Act does not require all members of a claim group to participate in the decision-making process. It is sufficient if all members have been given an opportunity to participate.[5] The decision by the participants does not need to be unanimous.[6]

10.8       Justice French (as he then was) 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.[7]

10.9       A claim cannot be registered unless the Registrar is satisfied that the applicant is authorised to make the application, or that the representative body has certified that the applicant is authorised.[8]