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Editors --- "Duren v Kiama Council - Case Summary" [2002] AUIndigLawRpr 26; (2002) 7(2) Australian Indigenous Law Reporter 16

Court and Tribunal Decisions - Australia

Duren v Kiama Council

Federal Court of Australia (Lindgren J)

7 December 2001

[2001] FCA 1363

Native title claim — motion for removal and replacement of person authorised by native title claim group to be applicant — Native Title Act 1993 (Cth) ss 66B, 251B

Facts:

The principal proceedings involved a claim for the determination of Native Title brought by the applicant, Ernest Duren, on behalf of the Elouera Aboriginal People. Gwendoline Brown, by notice of motion, moved for an order under s 66B of the Native Title Act 1993 (Cth) (the Act) removing Ernest Duren as applicant and replacing him with herself as the person authorised by the Elouera Aboriginal People. Several affidavits had been filed in support of the motion.

Held:

1. Section 66B of the Act authorises the removal and replacement of an applicant if he or she is no longer authorised by the native title claim group to make the application and to deal with matters arising in relation to it, or if he or she has exceeded the authority to do so given to him by the claim group, and a replacement is authorised by the claim group to make the application and to deal with matters arising in relation to it: [2].

2. The matter of the authorising of a person to make an application is dealt with in s 251B of the Act. The starting point is to identify the members of the native title claim group and to establish whether or not there is a process of decision making under the traditional laws and customs of the persons in the native title claim group: [5].

3. The affidavits filed did not establish who the members of the native title claim group were, nor whether there was, or was not, a decision making process under the traditional laws and customs of the Elouera Aboriginal People. Moreover, while they did refer to a meeting at which individuals sought replacement of the current applicant with Gwendoline Brown, they did not establish any formalities touching the due convening and decision making at the meeting. As a result, the motion was dismissed: [5]-[6].??