Authorisation and decision-making in native title Nick Duff Goldfields Land and Sea Council Authorisation and decision-making in native title Authorisation and decision-making in native title Nick Duff Goldfields Land and Sea Council First published in 2017 by AIATSIS Research Publications © Australian Institute of Aboriginal and Torres Strait Islander Studies, 2017. All rights reserved. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968 (the Act), no part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Act also allows a maximum of one chapter or 10 per cent of this publication, whichever is the greater, to be photocopied or distributed digitally by any educational institution for its educational purposes, provided that the educational institution (or body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. The views expressed in this publication do not necessarily reflect the official policy or position of the Australian Institute of Aboriginal and Torres Strait Islander Studies. Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) GPO Box 553, Canberra ACT 2601 Phone: (61 2) 6246 1111 Fax: (61 2) 6261 4285 Email: [email protected] Web: www.aiatsis.gov.au National Library of Australia Cataloguing-in-Publication entry Creator: Duff, Nick, author. Title: Authorisation and decision-making in native title / Nick Duff. ISBN: 9781922102614 (paperback) 9781922102607 (ebook) Subjects: Native title (Australia) Land tenure--Law and legislation--Australia. Aboriginal Australians--Land tenure. Culture and law--Australia. Australian Other Creators/Contributors: Australian Institute of Aboriginal and Torres Strait Islander Studies Typeset in Garamond Contents Summary ix Abbreviations xi Acknowledgments xii 1. Introduction 1 1.1 What this book is about 4 1.2 What is authorisation? 4 Authorisation in the claims process 5 Authorisation in the agreement-making process 6 Authorisation after the determination 6 Authorisation for compensation applications 6 2. Authorisation in native title determination applications 7 2.1 What is an applicant? 7 Applicants are joint but not incorporated 8 Eligibility to be named applicant 13 Summary: What is an applicant? 16 2.2 When and why is it necessary to establish authorisation? 17 Originating application — Form 1 17 Registration test 17 Jurisdiction 19 Strike-out, dismissal and ‘show cause’ orders 21 Joinder 24 Replacing the existing applicant 25 Taking steps in the proceedings 25 2.3 Legal, political and social importance of the applicant 26 3. Authorising an applicant 29 3.1 The ‘native title claim group’: conceptualising the authorising constituency 29 Subgroups and shared country 35 ‘Trust-like’ claims 40 Social or cultural coherence not required 42 Representative structures in the authorisation process 44 Summary: native title claim group 46 Published by AIATSIS Research Publications v 3.2 Authorisation by ‘all the persons’ in the native title claim group 46 What proportion of claim group members must be involved in authorisation? 47 Will opposition by a minority prevent authorisation? 52 Must an authorisation meeting be representative of all subgroups? 55 May (or must) the application be authorised separately by the various constituent subgroups? 57 Applicant need not reflect internal subgroup structure 59 Will the participation of non–claim group members at a meeting void the authorisation given? 60 Is a meeting actually required at all? 61 3.3 Authorisation in practice 66 Before the meeting — research and notification 66 Pre-meeting research 67 Circulation of notices 67 Content of notices 69 Other matters 72 Attempts to prevent meetings 73 At the meeting — decision-making processes 74 Mutually exclusive hierarchy of processes in s. 251B 75 Traditional decision-making process 76 Non-traditional decision-making process 83 Proving the process and outcomes 87 Quality versus form in the decision-making process 89 4. Actions by the applicant 95 4.1 Extent of applicant autonomy 95 Amendments and errors 97 Interlocutory steps, discontinuance, consent determination 99 Conditional appointment 101 Disagreement between applicant and some members of the claim group 105 4.2 Disagreement, disability or death within the applicant 107 Can an applicant act by majority if the terms of appointment say so? 107 Can an applicant act by majority without an explicit provision? 109 What are the consequences of disagreement within the applicant? 111 Separate legal representation 113 4.3 Obligations of the applicant 113 4.4 Legal professional obligations 116 vi Published by AIATSIS Research Publications 5. Changing the composition of the applicant 119 5.1 How can the composition of the applicant be changed? 121 Non-66B method 123 Change to composition of the proposed replacement applicant between authorisation and application 125 Section 66B method 126 Authorisation of the replacement applicant 127 Grounds for removal or replacement 129 Discretion 136 Documents required 138 5.2 Consequences of a failed s. 66B application 139 6. Changing the claim group description 141 6.1 Authorisation by pre-amendment group 141 Participation in decision-making by non-members of pre-amendment claim group 144 6.2 Authorisation by proposed amended claim group 145 Where amended claim group authorises replacement applicant 147 Where outgoing applicant refuses to make the application for amendment 150 Replacement applicant composed entirely of pre-amendment claim group members 153 Replacement applicant contains some individuals not part of pre-amendment claim group 154 Where original authorisation was defective 156 6.3 Summary on changing claim group description 158 7. Authorisation and decision-making in agreement-making 161 7.1 Entering and authorising ILUAs 162 Area ILUA 163 Who must be party to an Area ILUA? 164 Who must authorise an Area ILUA? 171 Process for authorisation 180 Separate decisions 184 Combined decision 184 When an RNTBC is involved 186 Documentation 187 Objections and registration 188 Alternative Procedure ILUA 191 Body Corporate ILUA 192 Published by AIATSIS Research Publications vii 7.2 Entering and authorising s. 31 agreements 193 The legal mechanics of s. 31 agreements 193 The role and autonomy of the applicant in s. 31 agreements 194 Where some of the named applicants disagree or are unavailable 196 Privity under s. 31 agreements 201 8. Post-determination decision-making and nominating the RNTBC 203 8.1 Nominating a PBC for determination 205 Who can nominate? 206 Is evidence of authorisation or consent required? 207 Process for nominating an existing RNTBC for a further determination 210 Process for replacing the RNTBC 210 Replacement initiated by common law native title holders 210 Replacement initiated by liquidator 212 Criteria for replacement corporations 212 8.2 Decision-making within RNTBCs 213 Consultation and consent requirements for native title decisions 216 Native title decision 217 Regulation 8 procedure 219 Alternative consultation process (Regulation 8A) 221 Documenting the process 222 Summary 225 9. Native title compensation claims 227 9.1 Claim filed by RNTBC 227 9.2 Claim filed by individual named applicants 228 10. Conclusion 231 10.1 The scope of authority 232 10.2 Logical circles 233 10.3 Loss of procedural self-reliance? 236 10.4 Navigating in difficult territory 238 viii Published by AIATSIS Research Publications Summary Native title involves an interface between the Australian legal system and Indigenous legal, cultural and political systems. In Australia, traditional Indigenous rights in land are necessarily recognised and managed at the group level, even in contexts where some rights can be held individually. At the same time, the Australian legal system generally demands hard-edged decisions, with legal consequences that are concrete, final and binding rather than fluid, contextual and renegotiable. In this setting, native title law must regulate complex and contested interactions between the Australian legal system and sometimes large and disparate groups of Indigenous people. In doing so, the law faces a twin challenge: how to remain neutral in the face of competing claims about legitimate Indigenous authority, while ensuring that internal disagreements do not make collective agency impossible. The Australian legal system addresses this challenge by imposing a centralised representative structure on Indigenous group decision-making. During the native title claims process and compensation claims, this is done by requiring groups to appoint one or more individuals to act as the ‘applicant’ in the Federal Court. After native title is formally recognised, a new representative structure is mandated – the ‘registered native title body corporate’. In both cases, the law sets out rules that both govern the process by which the group authorises the representative and define the scope of the representative’s power to make decisions on behalf of the group without prior consultation. Together, these rules can broadly be referred to as the ‘law on authorisation’. In the more than 20 years since the first native title claim, a vast and complex body of law and practice has developed, covering everything from the legal duties owed