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Editors --- "Ward v Northern Territory of Australia - Case Summary" [2003] AUIndigLawRpr 17; (2003) 8(2) Australian Indigenous Law Reporter 13

Court and Tribunal Decisions - Australia

Ward v Northern Territory of Australia

Federal Court of Australia (Mansfield J)

2 December 2002

[2002] FCA 1477

Native title — application to replace applicants in claimant application — whether applicants no longer authorised by native title claim group —authorisation of proposed new applicants — whether decision making process according to traditional law and custom — discretion to replace applicants

Facts:

An application was filed with the National Native Title Tribunal on 3 January 1995 for determination of native title on behalf of the Miriuwung Gajerrong People (the native title claim group) in respect of certain land in the north-western area of the Northern Territory. There were 22 persons named as applicants.

Pursuant to leave given on 21 October 1999 the native title determination application was amended to satisfy the registration test, introduced by amendments to the Native Title Act 1993 (Cth) (‘NTA’) which came into force in September 1998. Section 61(1) of the NTA, as amended by the Native Title Amendment Act 1998 (Cth), requires that a native title determination application be made only by persons authorised by the native title claim group.

According to the applicants for replacement, the native title claim group is organised on the basis that responsibility for, and control of, the land is exercised by various local groups or clans. Members of the local groups refer to their local areas as their ‘Dawang’ or country. The members of the local groups responsible for speaking for, and looking after, the local areas are called ‘Dawawang’ or traditional owners. The local groups make decisions in relation to particular land under traditional law and not by a consensual or democratic process.

Using this process an application was made under s 66B of the NTA to replace the named 22 applicants (effectively reduced since 1995 from 22 to 16) with 15 persons (the proposed applicants).

Held, allowing the application for replacement:

1. It is of central importance to the conduct of native title determination applications that those who purport to bring such applications on behalf of a group of asserted native title holders have the authority of that group to do so [5]–[6]. French J in Daniel v State of Western Australia [2002] FCA 1147 and Holbrow v State of Western Australia [2002] FCA 1428 followed.

2. Section 66B of the NTA recognises that a native title claim group which according to its traditional laws and customs has authorised particular persons as members of the native title claim group to make and deal with matters in relation to a native title determination application may also withdraw that authority, and can act where its authority has been exceeded [8].

3. Although s 251B of the NTA only expressly refers to authorisation, s 251B is still an appropriate means of identifying the decision making processes by which authorisation may be withdrawn for the purposes of s 66B of the NTA. French J in Daniel v State of Western Australia [2002] FCA 1147 applied [15].

4. The cessation of the authority conferred to make and deal with matters in relation to a native title determination application must be effected by some further decision by the native title claim group, unless the original authority was limited so as to cease upon the happening of some event without any further decision of the native title claim group. French J in Daniel v State of Western Australia [2002] FCA 1147 applied [15].

5. The authority conferred to make and deal with matters related to a native title determination application will be exceeded only if:

(a) the authority so conferred was subject to some expressed limitation or restriction which has been exceeded; or

(b) the authority so conferred was subject to the continuing supervision and direction of the native title claim group and there is some resolution or direction of the native title claim group which has not been complied with; or

(c) the authority so conferred has, by some further decision of the native title claim group, been made subject to some expressed limitation or restriction which has been exceeded, or has been made subject to the continuing supervision and direction of the native title claim group and there is some resolution or direction of the native title claim group which has not been complied with.

French J in Daniel v State of Western Australia [2002] FCA 1147 applied [15].

6. The conditions which must be satisfied by those making an application under s 66B of the NTA are:

(a) there is a claimant application;

(b) each applicant for an order under s 66B is a member of the native title claim group;

(c) the persons to be replaced are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(d) alternatively, the persons to be replaced have exceeded the authority given to them by the native title claim group; and

(e) the persons making the application under s 66B are authorised by the native title claim group to make or maintain the native title determination application and to deal with matters arising under it.

French J in Daniel v State of Western Australia [2002] FCA 1147 applied [15].

7. Decisions made about the claim area were required to be made by consultations between the Dawawang for the particular areas comprising the claim area and other senior Aboriginal persons who are knowledgeable about the claim area or parts of it and have custodial responsibility for it. The individual members of the native title claim group who do not agree with the decisions reached by the ‘elders’ by the process described do not have a veto right. Nor are decisions reached in that manner invalid or ineffective because some individual members of the native title claim group do not agree with them [33].