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Authorisation
Meetings
Since the
1998 amendments to the
Native Title Act 1993 (Cth), in order to make a native title or
compensation application, section 62 requires the person/s to
demonstrate that they are authorised to make the application by all
the members of the native title claim group.
The courts
have taken a close interest in the way that decisions have been made
at authorisation meetings in other regions, to the effect that there
are now some base requirements for the way that these meetings are
convened. As such, claimants and NTRBs need to comply with the
legal requirements for these meetings in order to facilitate
sustainable outcomes.
While a
number of Federal Court decisions related to authorisation meetings
focus on the removal and replacement of native title applicants,
some cases have taken a wider view, and the collection of these
decisions provide direction on the nature of authorisation meetings,
whether they address new native title applications, the nature of
the claim group, removal of applicants, or amendments to claims.
1. How are the
meetings organised?
It is clear that authorisation meetings need to be
organised so as not to disadvantage certain members of the claim
group (Quandamooka).
The first point of reference on this question is the content of the
notice of the meeting. Justice French in
Bolton said that:
-
Advertisements and notices of a meeting must
include claim group descriptions, with identified apical
ancestors; and
-
Notices of meetings must identify the claim group
description in such a way that individuals can verify whether they
are members of the claim or not, with greater burden on the
complexity of notices to claim group members, potentially
requiring details of the basis for the claim group to be included
in notices, including genealogical information.
Justice French in
Daniel examined the meeting notification and procedures in
detail, including the content of the notices, who they were sent to,
the number of people present at the meeting, and the registering of
attendance. Personal contact was also made with claimants who lived
in and around the area. French J accepted that sufficient
notification had been given to the members of the native title
group.
2. Who authorises the
decisions?
The courts
have paid significant attention to who participates in the
decision-making process at authorisation meetings. Justice French
in
Bolton explained that the meeting needs to demonstrate that:
-
the descent of the people at the
meeting from the relevant ancestors;
-
those attending the meeting are
members of the native title claim group (and this cannot be
established through self-identification); and
-
those attending are
‘representative’ of the various elements of the native title
group.
The courts
have examined how many people attended a meeting in an effort to
decide whether a specific meeting was a meeting of the ‘group’,
while only one example can be found of a judge suggesting that the
every member of the claim group needs to be in attendance, there
have been other instances that imply that an unspecified percentage
of the group needed to attend the meeting in order for it to be
‘representative’.
In
analysing the relevant cases, it can be concluded that an
authorisation decision need not be a decision of every member of the
claim group; rather, it may be accepted to be a decision of the
group if it can be shown that:
-
the people involved in making the decision
represents a reasonable cross section of the claim group;
-
the smaller group (either a working party, group of
elders or people at a meeting) is authorised by the wider claim
group to make decisions of the kind in question; and
-
opposing groups are given an opportunity to be
involved in the decision-making process.
On the
notion of representation, the decision in
Moran showed that, in order to demonstrate authority, applicants
may identify a collective body or representative group who are able
to confer authority, supported by evidence that this body or group
exists under traditional law and custom and whose nature and extent
of authority under traditional law and custom extends to speaking on
behalf of the whole group.
Reliance
on ‘representative authority’ was discussed in
Daniel, where the judge outlined that the group (those attending
an authorisation meeting) may have authority to make the decision
where it is sufficiently representative (of the whole claim group)
and there are no significant groups or individuals excluded from the
decision-making process.
In
addition, a smaller group or particular individuals (a working
party, group of elders or people at a meeting) may hold
decision-making authority under traditional law and custom or by
virtue of a process agreed by the whole claim group (Daniel).
Where decisions in relation to claim management are made by working
parties or other intermediary groups, the source and extent of
authority of the smaller group must be clearly established by
evidence (Bolton).
On the
need to be inclusive, problems have arisen where meetings have been
convened in the absence of a specific group, particularly opposing
groups. Specifically, as detailed in the
Quandamooka judgement, persons authorised by a meeting that does
not include dissident groups can be indicative of inadequate
processes.
On the
issue of evidence, there is a burden on the organisers of an
authorisation meeting, normally the native title representative body
or native title service, to formally document not merely the
attendance at meetings but the connection of attendees to the claim
group. Justice French in
Daniel accepted as evidence the affidavits in which native title
claimants and NTRB staff attested to the fact that the attendees
matched the attendance list and that those in attendance were of the
relevant native title group. This evidence was supported by the
observations of an anthropologist who had a long association with
the native title group.
Similarly,
evidence in the form of affidavits from an anthropologist,
Aboriginal project officer or similar person with a knowledge of the
claim group that those attending a meeting can be linked to the
claim group description should also be sufficient to satisfy the
court (Simpson).
3. How are the
decisions made?
A
distinction has been made by the courts between a decision-making
process accepted by the native title claim group as a whole and a
decision-making process adopted by people at a meeting. For
example, there must be a correlation between the original
decision‑making process adopted for the authorisation of applicants
and the decision-making process used to remove them. So, where
there is no evidence of such a correlation, the information provided
to demonstrate the legitimacy of the new process will need to be
more stringent.
Moreover,
Justice French in
Bolton stated that a native title claim group must have a
pre‑existing process for decision-making (such as the process used
at first instance of authorisation, or even more preferably, a
decision-making process used for decisions relating to the claim
consistently over a period of time) rather than a decision-making
process adopted at the start of a particular meeting. Further, the
process must be traceable to a decision of the claim group. And
again, the legitimacy of the decision‑making process is therefore
dependent on whether it can be established that those who were in
attendance at a specific meeting and adopted a decision-making
process had the authority of the wider claim group to do so (Andersen).
Similarly,
cases have referred to the importance of evidence (including
affidavits) that identifies the nature and legitimacy of the
decision-making process followed by the meeting to confirm authority
on the applicants; that is, the formalities or rules used to convene
the meeting and to reach decisions at the meeting (Quandamooka;
Duren).
More
positively, the courts have accepted that the adopted
decision-making processes of ‘community meetings’, where a majority
decision by the participants can be shown by decree or show of
hands, are a demonstration of a legitimate method by the group.
Indeed, Justice French in
Daniel accepted that this approach was the decision-making
process adopted over time by that group, and by inference, the
approach had been agreed by the group for all decisions related to
their application.
For a more
expansive explanation, see Lisa Strelein, ‘Authorisation
and replacement of applicants: Bolton v W.A. [2004] FCA 760 (15 June
2004)’, Land, Rights, Laws: Issues of Native Title, vol. 3, 1,
March 2005.
Cases
Andersen v WA [2003] FCA 1423
(4 December 2003, French J)
Bidjara People 2 v Queensland [2003] FCA 324
(7 April 2003, Ryan J)
Bolton v WA [2004] FCA 760
(15 June 2004, French J)
Button v Chapman on behalf of the Wakka Wakka people
[2003] FCA 861
(20 August
2003, Kiefel J)
Daniel v WA [2002] FCA 1147
(13 September 2002, French J)
Duren v Kiama Council [2001] FCA 1363
(Lindgren J)
Moran v Minister for Land and Water Conservation
(NSW) [1999] FCA 1637
(25
November 1999, Wilcox J)
Quandamooka v Queensland [2002] FCA 259
(6 March 2002, Drummond J)
Simpson on behalf of the Wajarri Elders v WA [2004]
FCA 1752
Other
Resources on Authorisation
Bartlett,
R. 2004 ‘Making a Claim Under the Native Title Act 1993, Native
Title in Australia (2nd ed, LexisNexis Butterworths, Brisbane)
[11.4].
Hiley, G.
2005, ‘How important is authorisation?’ Native Title News 7(5), pp.
83-87.
Hiley, G.
2004, ‘Amendment and authorisation of Old Act applications’ Native
Title News 6(11), pp. 203-206.
Phillips,
S. 2000, ‘The
Authorisation Trail’ Indigenous Law Bulletin 4(28), pp. 13-15.
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