FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Wulli Wulli People v State of Queensland [2011] FCA 1158

THE COURT ORDERS THAT:

The notice of motion be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        On 29 June 2011 a notice of motion was filed in which the applicant to the motion sought an order from the Court that:

1.    The “Notice of Change of Service Address” (sic) filed by Just Us Lawyers on 24 May 2011:

a.    Was not authorised by the applicant in the Native Title Determination of the Wulli Wulli People (QUD 6006 of 2000)

b.    Is of no effect; and

c.    Is to be removed by the Registrar.

2        The notice of motion is clearly reflective of a dispute between the persons constituting the applicant (“the applicant”) to the Native Title Determination Application in the Wulli Wulli claim. So far as is relevant to these proceedings, it appears uncontroversial that 12 of the 15 persons constituting the applicant wish the applicant to be represented by Just Us Lawyers, whereas three do not agree and wish to retain Queensland South Native Title Services (“QSNTS”) as the solicitor on the record. In substance, the applicant to the motion before me is three of the 15 persons constituting the applicant who oppose Just Us Lawyers being retained, and the respondent to the motion the remaining 12 of the 15 persons constituting the applicant.

3        The applicant to the motion submitted that the purported notice of change of solicitor, whereby Just Us Lawyers purportedly became the solicitor on the record of the applicant, was itself flawed and of no effect, and to that extent there is no basis for any orders of the Court “removing” Just Us Lawyers from the record. At the hearing on 13 July 2011 however the only ground pressed in support of the motion was that the appointment of Just Us Lawyers as the solicitor for the applicant was of no effect because Just Us Lawyers do not hold instructions from all of the persons constituting the applicant as required by the Native Title Act 1993 (Cth) (“the Act”). In deciding the motion I focus on this ground.

Background

4        The background facts to motion are uncontroversial. They are described in the affidavit of Ms Elizabeth Law filed 23 June 2011.

5        Authorisation meetings of the Wulli Wulli claim group were held on 14 February 2009 and on 13 June 2011.

6        At the authorisation meeting of 14 February 2009 a number of resolutions were passed including the following:

    Resolution 10

That this meeting determines that the number of members of the Wulli Wulli native title claim group authorised to make the Application for native title and deal with matters arising in relation to it shall be 15.

    Resolution 11

That this meeting authorises the following members of the Wulli Wulli native title claim group to make the application for determination of native title and deal with matters arising in relation to it subject to the terms and conditions provided to this meeting and marked “B”.

1.    Desmond Dodd

2.    Annette Fuller

3.    Neil Saltner

4.    Elizabeth Blucher

5.    Drew Millar

6.    Robert Clancy

7.    Celeste Williams

8.    Brian Clancy

9.    Jill Wilson

10.    Marjorie Reid

11.    Robert Bond

12.    Jeffrey Williams

13.    Elizabeth Law

14.    Elliott Anderson

15.    Ivan Saltner

7        The terms and conditions marked “B” referred to in Resolution 11 were:

“B”

TERMS AND CONDITIONS

OF APPOINTMENT OF APPLICANTS FOR THE

WULLI WULLI NATIVE TITLE GROUP

The claim group of the Wulli Wulli & DJJ Peoples authorise the Applicants appointed on 14 February 2009 to act on behalf of the claim group under the following terms and conditions.

1.    That the Applicants represent the whole of the claim group not just their own family descent group.

2.    That in the event that one or more Applicant is unable or unwilling to continue to act as an Applicant whether as a result of death, ill-health or any other reason the remainder of the Applicants may continue to act as Applicants.

3.    The Applicant may agree to reduce the area of the claim in mediation with any other party and may take any formal steps on behalf of the Applicant to effect such reduction without conducting an authorisation meeting.

4.    Decisions of the Applicant shall be on the basis of a majority vote and all Applicants shall abide by a majority decision.

5.    The Applicant may negotiate and reach agreement with respect to Cultural Heritage matters in addition to the claim Application but must ensure that for Cultural Heritage inspection work they allocate the work fairly amongst all qualified members of the claim group.

6.    The Applicants may negotiate and reach agreement with respect to Future Act matters but are required to consult with Elders of the group before executing any agreement.

7.    The Applicants shall as far as possible act according to traditional law and custom and operate with Elders Structures and family groups providing evidence to them and through working groups which may be established by the Applicants.

8        At the authorisation meeting of 13 June 2011 further resolutions were passed including the following:

    Resolution 4

Directions to the Applicant on How to Conduct its Affairs

The members of the Wulli Wulli Claim group directs that the Applicant must:

a)    continue to undertake their responsibilities as the Applicant in accordance with the Terms of Reference which form the basis of their original authorisation;

b)    in the event that one or more of the individuals are incapable, unable or unwilling to continue to serve as a member of the Applicant group whether as a result of death, ill-health or any other reason, the remaining persons who comprise the Applicant may continue to act without the need to appoint a replacement; “unwilling” includes a person who indicates that they no longer wish to remain as one of the persons who comprises the Applicant or is no longer willing to carry out their duties subject to the directions contained in this resolution;

c)    in the event that agreement cannot be reached, make all decisions by simple majority of those present at a face to face meeting or by a simple majority of those persons comprising the applicant providing written or verbal instructions to the Applicant’s legal advisor. All persons comprising the Applicant must abide by the simple majority decision; and

d)    accept that on any document purporting to bind the Applicant or the claim group the signatures of the simple majority of persons who constitute the Applicant will be suifficient.

    Resolution 5

Termination of Instructions to Queensland South Native Title Services (QSNTS)

The members of the Wulli Wulli Claim group authorise the Applicant:

a)    to withdraw and terminate the instructions of QSNTS to act for them as solicitors on the record for the Wulli Wulli Claim;

b)    to retain Just Us Lawyers, or any other Australian legal practitioner acceptable to the Applicant acting under the authority of these resolutions, to prosecute the Wulli Wulli Claim;

c)    to seek funding from the Auburn Dawson Peoples Trust or any other source of funding which may be available to fund the prosecution of the Wulli Wulli Claim, including and without limitation, by commissioning an anthropologist to prepare a connection report for the Wulli Wulli Claim and the new claim, which in their professional judgment they believe to be necessary6 to achieve a determination of native title.

9        On 24 May 2011 Mr Hardie of Just Lawyers filed a “Notice of Change of Service Address” (sic) in which Just Us Lawyers was described as the “new address for service for the Applicant”. At a directions hearing in this matter of 24 June 2011 there was dispute between the parties as to whether Just Us Lawyers was the solicitor on the record for the Wulli Wulli People. I directed, inter alia, QSNTS to file and serve an application for an order removing Just Us Lawyers as solicitor on the record for the applicant.

Submissions of the parties

10        In summary, the applicant to the motion contends as follows:

    While there was dissension within the applicant and/or claim group, the applicant remains the 15 people authorised by the Wulli Wulli People claim group at the authorisation meeting.

    It is apparent that the purported “Notice of change of Service Address” was not filed on the instructions of all 15 people who constitute the applicant. In particular, it was not filed on the instructions of Mr Elliot Anderson, Mr Desmond Dodd or Mr Jeffrey Williams. Accordingly, the notice is of no effect.

    The combined effect of ss 13, 61(1), 61(2), 62, 62A, 251B of the Act is that decisions of the applicant must be unanimous. The principle that the majority of the members of the applicant could make a “decision” in the name of the applicant is inimical to the objects of the Act.

    The purported resolution of the Wulli Wulli claim group on 13 June 2011 relating to the change of solicitors was ineffective to appoint Just Us Lawyers as the solicitor on the record because such matters can only be dealt with by the applicant. If the claim group is dissatisfied with the decision of the applicant in respect of the solicitor on the record, the applicant can be replaced by the claim group pursuant to s 66B of the Act after notice has been provided to all of the relevant parties.

11        The respondent to the motion submits in summary that:

    It is not a requirement of the Act that the persons authorised to make the application are jointly authorised – s 61(1) requires only that a person or persons are authorised by the claim group to make the application.

    The purpose of ss 61(1), 61(2)(c) and 251B is to seek a workable and efficient method of prosecuting claims.

    The notion that the persons authorised to be “the applicant” are to “act together” is not inconsistent with an express term of their authorisation that they may do so on the basis of a decision of a majority of them.

    Section 62(1)(c) ought not be interpreted in such a way as to remove the autonomy of the claim group itself to determine how its representative or agent is to act.

    The purpose of legislation in respect of the efficient prosecution of claims would be frustrated if the express terms of the authorisation by the claim group are to be ignored.

    Allowing the motion before the Court would lead to an absurd and unjust result.

    While “the applicant” has the authority for the purposes of the Act to take steps in relation to the proceeding, it is relevant and appropriate for the Court to have regard to the wishes of the claim group.

12        In this case it is apparent from Resolution 5 of the authorisation meeting of 13 June 2011 that the wish of the majority of members of the claim group was that there be a change in the lawyers assisting the prosecution of the determination application. It also appears that twelve of the fifteen members of the applicant have that wish. Considered casually, an odd result would flow if the effect of the legislation and relevant cases were to frustrate those wishes. However the applicant to the motion has marshalled a persuasive case in support of the orders it seeks. It is appropriate to now turn to the relevant legislation and cases, to consider both the statutory framework which defines the role and function of an applicant, and cases which have considered that role and function.

Relevant legislation

13        The key legislative provisions in these proceedings are ss 13, 61(1), 61(2), 62, 62A, 66B and 251B of the Act.

14        It is not in dispute that the Wulli Wulli claim is an application for a determination of native title, in relation to an area for which there is no approved determination of native title within the meaning of s 13(1)(a) of the Act.

15        Section 61 provides some guidance in respect of applications under the Act. So far as relevant, s 61(1) and (2) provide:

61 (1) The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

(2) In the case of:

(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(c) the person is, or the persons are jointly, the applicant ; and

(d) none of the other members of the native title claim group or compensation claim group is the applicant.

16        Section 62 prescribes information required to be filed in respect of certain applications, and so far as relevant provides:

62(1) A claimant application (see section 253):

(a) must be accompanied by an affidavit sworn by the applicant:

(i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

(ii) that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and

(iii) that the applicant believes that all of the statements made in the application are true; and

(iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

(v) setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

(b) must contain the details specified in subsection (2); and

(c) may contain details of:

(i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application--that traditional physical connection; or

(ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application--the circumstances in which the access was prevented.

Note: The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.

(2) For the purposes of paragraph (1)(b), the details required are as follows:

(a) information, whether by physical description or otherwise, that enables the boundaries of:

(i) the area covered by the application; and

(ii) any areas within those boundaries that are not covered by the application;

to be identified;

(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i);

(c) details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii) there exist traditional laws and customs that give rise to the claimed native title; and

(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f) if the native title claim group currently carry on any activities in relation to the land or waters--details of those activities;

(g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

(ga) details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

(h) details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

Note: Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).

17        Section 66B provides a mechanism for the claim group to replace the applicant in the following terms:

66B(1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i) the person consents to his or her replacement or removal;

(ii) the person has died or become incapacitated;

(iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

(2) The Court may make the order if it is satisfied that the grounds are established.

(3) If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

(4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

18        Finally section 251B provides for the authorisation of the making of an application in the following terms:

251B For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b) where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

Relevant cases

19        I now turn to decisions of this Court where relevant principles have been articulated.

Ankamuthi

20        In Ankamuthi People v State of Queensland (2002) 121 FCR 68 Drummond J dealt with a motion seeking a declaration that a notice of change of solicitors was ineffective. The evidence before his Honour revealed that none of the five persons who were the applicant in that native title claim had given instructions to change the solicitors. His Honour noted that dissension had developed within the Ankamuthi claim group and that a large majority of the claim group had become unhappy about the manner in which the native title application had been conducted by the applicant and the solicitor on the record. His Honour accepted that the action to file a notice of change of solicitor was apparently taken at the behest of the large majority of the Ankamuthi People. However, his Honour took the view that that course was without any legal foundation, could properly be described as “a subterfuge to avoid compliance with the provisions of the Native Title Act 1993 (Cth)”, and that the procedure prescribed by s 66B to replace the applicant is properly employed where there is dissension in a claim group and the applicant no longer has the authority of the claim group to run the action on the group’s behalf (paras [5]-[6]). His Honour continued:

[7] The provisions of that Act are clear. Section 61 makes provision for, among other things, a person authorised by all members of the native title claim group to bring an application for determination of native title on behalf of the claim group. Such a proceeding is obviously a representative proceeding. By s61(2), it is provided that where a person authorised by a claim group to bring an application of native title on behalf of the group makes such an application, that person is the applicant and none of the other members of the claim group is the applicant.

[8] It is clear enough from that provision that it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of the claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings, have no authority to take any step in the proceedings. That follows, by implication from s 61(2), from identifying the person who makes the application as the applicant and declaring that no other member of the claim group is the applicant. But if more were needed, it is to be found in s 62A, which explicitly states that to be the position.

[9] It follows from this that the Land Council, notwithstanding the fact that it may have acted on the instructions of a large majority of Ankamuthi People on behalf of whom QG 6158 of 1998 was brought, had no lawful authority to file the notice of change of solicitors which it did on 14 March 2002.

Anderson

21        In Anderson v Western Australia (2003) 204 ALR 522 as part of a rationalisation process involving numerous applications covering areas of land and water in south-western Western Australia, the relevant Native Title Representative Body filed a single claim. A motion was subsequently filed in which amendments were sought to one of the applications (the Ballardong native title determination application) to contract its boundaries, and to replace the existing 16 named applicants in that claim with four applicants who would be the authorised applicants for the reduced claim. The evidence before the Court demonstrated that there were two dissenters in the ranks of the 16 named applicant, and that there were serious inadequacies in the material going to the question whether the application for replacement of the applicants was authorised by the native title claim group. As a result, French J dismissed the notice of motion to amend the Ballardong application.

22        His Honour described the statutory framework underpinning the authorisation process and the power of the Court to order amendments of a determination application. His Honour French J noted that there is no procedural requirement for any particular form of decision-making process by members of a native title claim group to authorise amendments to a claim outside the kind of amendment covered by s 66B (at [37]). His Honour found that, in so far as the application before him sought to reduce the number of applicants from the 14 living applicants to four by removing 11, retaining three and adding one, it must satisfy the criteria set out in s 66B (at [41]).

23        In relation to the whether the adoption of the claim group of a decision-making process by way of majority vote was a valid approach, his Honour considered it would be justifiable if there were no traditional decision-making method applicable to the processes of authorisation associated with the making and conduct of the native title determination application (at [46]).

24        His Honour found that the conditions for replacement of the applicants under section 66B had not been made out and would not be allowed. His Honour then continued:

[48] It is nevertheless submitted for the applicants that even if the Court is not satisfied on the question of replacement of the existing applicants, the other amendments sought should be allowed as there is no issue raised against them. Amendment of an application, other than replacement of applicants, may be dealt with by applicants named on behalf of the native title claim group. So much appears from s 62A of the Act. That extends to an authority to apply for an amendment to the application. Whether such an amendment should be allowed is always a discretionary issue. In this case I am satisfied that all applicants, save for Mr Saul Yarran and Mr Robin Yarran, support the present application for amendment of the application in the way proposed. Where a division arises between the applicants such that one or more of them is not prepared to support an amendment, it may be debatable whether the Court has authority to allow the amendment. It is not necessary for me to decide that question here. Where it is a major amendment that is proposed the dissent of some of the applicants to the proposed amendment is a powerful discretionary factor against allowing it. In such a case whether the bar be legal or discretionary the proper remedy for the majority applicants is to the proper remedy for the majority applicants is to go back to the native title claim group and obtain a decision that the group of applicants, in so far as it includes the dissentients, is no longer authorised by the claim group to deal with matters arising in relation to the application, and an authority for members of the native title claim group to apply to the Court under s 66B. Alternatively, it may be that the authority conferred upon the applicants is conferred in terms that enable it to be exercised according to a majority vote. That would, however, depend upon the terms of the authority. I express no concluded view on the efficacy of such a procedure.

Butchulla

25        In Butchulla People v Queensland (2006) 154 FCR 233 the applicants to the motion before the Court sought an order pursuant to s 66B that they replace the persons then authorised to be the applicant in respect of that native title claim (that is, the respondents to the motion). At some point between the holding of the authorisation meeting and the date of the hearing, two of the members of the group constituting the applicant in that native title claim indicated that they no longer wished to act in that capacity. The respondents to the motion disputed that the revocation of their authorisation by the claim group was effective, and contended that:

    the later authorisation of the applicants to the motion was ineffective; and

    a fresh authorisation meeting was required.

26        Before Kiefel J the respondents submitted that the “applicant” authorised for the purpose of the native title claim proceedings has something of a corporate character and cannot be viewed as made up of individual applicant. The respondents submitted that this position can be seen from the requirement of s 61(2)(c) that the persons authorised are jointly the “applicant” and, as paraphrased by her Honour:

It is that entity, here composed of 11 persons, which has been authorised and not a smaller one. (at [35])

27        The applicant submitted that the word “applicant” had more than one meaning in the Act, that it referred to all the persons who together make up “the applicant” for the purposes of the application but it also referred to each person who had been authorised to be the applicant in conjunction with others. The applicant therefore submitted that the term should not be confined for all purposes to the meaning given by s 61(2)(c) of the Act because:

(i)f that were so the “applicant” in native title claim proceedings would cease to exist if it transpired that just one of the persons making up “the applicant” was not a member of the native title claim group, ceased to be a member of that group, ceased to be authorised, or died. (at [36])

28        In considering the meaning of “the applicant”, her Honour observed as follows:

37 The meaning, or meanings, given to the word ‘applicant’ must be considered in its statutory context and by reference to the NTA as a whole. Regard must be had to the evident purpose and policy of the provisions and an attempt should be made to construe them so as to give effect to that purpose and achieve unity of all the statutory provisions: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 - 382.

38 The evident purposes of s 61 are to provide for representation of the claim group, to limit the number of persons who may act as ‘the applicant’ in the proceedings and, when more than one person is authorised, to require them to act in concert with each other. It may be assumed that since the persons authorised have a common interest in the subject matter of the claim acting jointly should not present a difficulty. Regrettably this is not always the case. In any event the section seeks a workable and efficient method of prosecuting claims for native title determination, one which limits the potential for dispute which might stifle the progress of claims.

39 Whilst s 61(2)(c) permits representative proceedings it does not create a legal entity which is itself capable of suing. And, whilst it obliges those authorised as representatives to co-operate with each other, it does not say that they are bound together in the way in which the respondents contend. The requirement that they act together does not imply that their ability to continue to act is dependent upon each other person authorised also continuing in the role. If that were the case it must arise from the terms upon which persons are authorised by the claim group.

40 Section 61 requires the persons who together are the applicant to be a member of the claim group and to be authorised by that group. Section 251B seeks to ensure that a proper process of authorisation is followed, one by which the Court can be satisfied that the wider group has authorised the persons to be their ‘applicant’. It recognises that in some cases proper authorisation may require the use of traditional customs or laws. Beyond these matters the NTA does not contain any express requirements as to how or upon what terms persons are to be authorised. It does however proceed upon the basis that each member of the claim group, including those authorised, has the same interest in the claim.

41 The respondents have not advanced a reason why, where more than one person is authorised to act as a representative, the persons authorised should be taken to be some kind of coalition. It might more readily be inferred, where the persons authorised represented distinct and different interests, that they must be replaced if they were unable to continue in that role. In that sense the ability of the rest of the group of representatives to continue would be affected. It may well be that the respondents view the matter in this way. The claim group has permitted each family to nominate a person to be authorised by the wider group. From the respondents’ perspective the composition of the ‘applicant’ reflects the various family interests. Such an approach is not however consistent with the nature of claims for native title determination nor the interests of the members of the claim group in it. The interest of each member is identical. The NTA does not recognise any sub-groups within the wider group having a different interest, as cases concerning the issue of authorisation consistently point out. It follows that, so far as the NTA is concerned, each person authorised is a representative of the entire claim group.

42 It follows, in my view, that the authorisation referred to in the NTA is not of the persons authorised collectively making up the ‘applicant’, but of each of them personally. There being no express term concerning the authorisation as to the authority to the contrary, statutory or otherwise, the presumptions usually applied to personal appointments would operate. That is to say, their authorisation will continue until revoked and whilst they are willing and able to act in their representative capacity. The requirement of the NTA, that persons authorised act together, is not a term or condition of appointment. It is a statutory requirement having as its purpose the efficient prosecution of claims.

43 Once the authority given by the claim group is seen to be directed to each of the persons authorised and subject to those terms it follows that the inability of one to continue does not affect the authorisation of the others. It is not an approach which cuts across any statutory provision or purpose. Unlike the respondents’ approach it is consistent with the nature of the rights associated with claims to native title determination. The authorisation given by the claim group must be seen in this light. This view of authorisation does not however prevent revocation if it were considered to be necessary.

44 It is of some importance that the preferred approach also allows the Court’s rules to have effect in proceedings of this kind. Order 6 rule 9 of the Federal Court Rules contemplates that there may be a need in some cases to remove a person as a party to the proceedings. A ‘party’ in the context of a native title claim the ‘applicant’, would be all persons who together make up the applicant, since the ‘applicant’ referred to in the NTA is not an entity itself capable of suing. There seems to me to be good reason why the Court should be in a position to exercise the power given by O6 r9 in native title claim proceedings as it does in any other litigation. I do not think it could be suggested that the need to do so would not arise.

45 In my view s 251B should be understood to refer to the authorisation of each person who is to represent the claim group and act with others as the ‘applicant’. The authorisation is personal to them and continues until revoked or whilst they are willing or able to act. Sections 66B(1) and 64(5), dealing with replacement and appointment respectively, should be read in a way consistent with this approach. The reference to the ‘current applicant’ being no longer authorised would be taken to refer only to those persons whose authority has in fact been revoked. This may not be all persons comprising ‘the applicant’. The ‘new applicant’ referred to in s 64(5) is each person who is authorised to make up the applicant when a change is made to one or more of them. The evidence that the subsection requires about their authorisation would be satisfied by those persons not newly appointed referring to their prior authorisation and the fact that it has not been revoked. For administrative convenience and clarity, their authorisation might also be ratified at the same meeting which authorises the new appointment or appointments, but this is not necessary.

Doolan

29        In Doolan v Native Title Registrar (2007) 158 FCR 57 a native title claim group authorised 18 members of the group to be the applicant in respect of the native title claim. Two of the members of the group withdrew their consent to be part of the applicant prior to lodgement of the application, and the remaining 16 members of the group lodged the application. The delegate of the Registrar declined to accept the application on the basis that the 16 persons who constituted the applicant in that case had not been authorised by the claim group to make the application, and that therefore those persons were not the applicant within the meaning of s 61(2) of the Act.

30        Before Spender J the applicant contended that, properly construed, the applicant in s 61(2) is constituted by the group of persons authorised by the meeting or so many of them as are able and willing to constitute the applicant, and further that Kiefel J in Butchulla at [42]-[43] was wrong because her Honour’s judgment was inconsistent with s 61(2) of the Act.

31        Spender J observed:

56 For my part, I do not see the authorisation of a number of persons as an ‘applicant’ as being an appointment of each of them ‘jointly and severally’ to deal with the matters arising with the matters in relation to an application. I accept that s 61(2) contemplates an authorisation of persons to act collectively, rather than each of them personally.

57 However, I think that an appointment of a group of persons jointly to be an ‘applicant’ by a meeting of a native title claim group is an authorisation for the named persons to act, or so many of them as remain willing and able to act. It is these persons who constitute the ‘applicant’. There is, in my opinion, an implication in an authorisation of a group to act collectively in a representative capacity that that authorisation has to be understood as recognising the vicissitudes that accompany joint action, particularly where (as is frequently the case) the persons authorised to make an application for a native title determination are elderly, and subject to the possible incidents of old age.

58 No differentiation, it seem to me, is to be made as to the capacity of a person in a group to act, and that person’s willingness to continue to act as a member of the group.

59 In the view I take of the matter, there is no requirement for there to be an express qualification to that effect, as the submissions of the Attorney-General suggest. Rather, the position is that an authorisation of a group of people to act has to be understood as meaning the authorisation of so many of them as continue to be willing and able to discharge their representative function.

60 It is important to remember that the persons who are authorised by a native title claim group to make an application are not authorised merely to make the application, but also to ‘deal with matters arising in relation to’ the application. If one person comprising an ‘applicant’ were to die, it would be contrary to the purpose of the Native Title Act to require there to be a further authorisation meeting to authorise another group of persons (perhaps constituted by the remaining members of the ‘originally specified persons’) to be the ‘applicant’. Such a frustration of proceedings, perhaps proceedings well advanced, would be antithetical to the purpose of the Native Title Act. That is the paramount consideration, but the gross waste of time and resources also serves to indicate that an interpretation of ‘applicant’ which avoids all of these consequences is clearly to be preferred.

32        Later his Honour continued:

65 In some instances, the term ‘the applicant’ is used in the Act to refer to the group of people who, as a group, are deemed to be ‘the applicant’ for the purposes of bringing and prosecuting the claim. In other circumstances, it is used to refer to each person (who must be a member of the claim group) who has been authorised to be an applicant.

66 It is helpful to recall that s 62(1) commences:

A claimant application

(a) must be accompanied by an affidavit sworn by the applicant:

(i) that the applicant believes ... ; and

(ii) that the applicant believes ... ; and

...

67 As a matter of language (and in fact of practice), the requirements of s 62 are satisfied by the filing of affidavits by each of the persons who constitute ‘the applicant’ deposing to the specified beliefs. It is not meaningful to speak of an affidavit sworn by a group of persons, or an affidavit deposing to what that group of persons believes. The ‘applicant’ in s 62(1), in my view, is a reference to each of the persons who comprises ‘the applicant’ for the purposes of s 61 of the Act.

68 While the judgment of Kiefel J in Butchulla People v Queensland and Others [2006] FCA 1063; (2006) 154 FCR 233 is the only case that is directly on point, there are other cases which contain observations supporting the conclusion that it is not mandatory that ‘the applicant’ consist of all of the persons authorised to be ‘the applicant’ by an authorisation meeting, and no fewer.

33        At [73] Spender J respectfully agreed with the conclusions of Kiefel J in Butchulla at [42]. His Honour found that “the applicant” in s 190C(4) is a reference to each person who comprises the applicant, and cannot be the group of persons who jointly make up “the applicant”: at [76].

Chapman

34        In Chapman v Queensland (2007) 159 FCR 507 two persons of the group constituting the applicant refused to cooperate with the remainder of the group, including in instructing the relevant Land Council and negotiating in respect of indigenous land use agreements. Another person in the group constituting the applicant had died. Before Kiefel J, the remaining persons named as the applicant sought orders from the Court that those three persons cease being part of the group constituting the applicant.

35        Before her Honour the submission was made that the “current applicant” in s 66B had an indivisible character, following the requirement of s 61(2)(c) that the persons authorised are jointly “the applicant” (at [8]).

36        Kiefel J reiterated her Honour’s finding in Butchulla that s 61(2)(c), in its reference to persons being jointly “the applicant”, does not create a legal entity itself capable of suing. Her Honour continued at [9]:

The requirement that persons making up the applicant act together, does not imply that their ability to continue to act was dependent upon each other person authorised also continuing in that capacity. The continuance of authorisation must depend upon the terms of the authorisation, a matter upon which the NTA did not speak. Section 251B recognises that, in some cases, proper authorisation may require the use of traditional customs and laws. Beyond that, the NTA does not contain any reference to the terms upon which persons may be authorised. The interest of each member was identical and those authorised are representative of the entire claim group.

37        Later in the judgment, her Honour observed:

[11] I was influenced to the view expressed in the Butchulla People’s application by reference to the evident purpose of the provisions of the NTA and because that view did not cut across any purpose or the operation of its provisions. The requirement of the NTA, that persons authorised act together, is not a term or condition of appointment, but a statutory requirement having as its purpose the efficient prosecution of claims. A view that the inability of one to continue to act should not affect the authorisation of the others is consistent with the nature of the rights to native title determination…

[12] I adhere to that view for the reasons given. A contrary approach would mean that ‘the applicant’ in native title claim proceedings would cease to exist if it transpired that just one of the persons making up ‘the applicant’ was not a member of the claim group or died and involve the considerable expense of undertaking another authorisation meeting of the entire group. I note that the decision in the Butchulla People’s application has been followed by Spender J in Doolan v Native Title Registrar [2007] FCA 192.

[13] The approach which I consider to be open does not limit the grounds for the effective removal of a person to those in s 66B(1), rather it gives effect to the basis upon which authorisation was originally made. It should not be inferred that it was intended that s 66B(1) be the only means by which the constitution of the applicant in proceedings before the Court can be altered. As the State of Queensland pointed out in its submissions, that provision provides a right in persons to apply to the Court in circumstances where they are not a party to the proceedings and O 6 r 9 is not available to them.

38        In conclusion, her Honour found as follows:

[17] The authorisation of each of the three persons referred to above was made upon the basis that they were able, and wished, to act in the capacity as a representative of the claim group for the purpose of advancing the application towards a determination of the native title rights and interests claimed. Pastor Collins cannot now act and the other two persons have shown that they are unwilling to do so. It follows that they are no longer a person authorised as applicant and an order under O 6 r 9 is justified. The Register should be amended accordingly.

Roe

39        In Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 two persons, Mr Roe and Mr Shaw, were named jointly as the applicant in respect of the relevant native title claim.

40        Mr Roe applied by amended notice of motion for leave to file an amended application and statement of claim in which he was the sole applicant in respect of the native title claim. Gilmour J concluded that Mr Roe had no standing in the proceedings before the Court.

41        Relevantly, his Honour observed as follows:

[34] There is no question that, subject to the NTA, this Court is conferred with jurisdiction in relation to matters arising under the NTA by virtue of s 213(2).

[35] It is my opinion that in relation to the present proceeding both this Court’s jurisdiction, by s 213(2), and standing, by s 62A, are conferred by the NTA. Standing, in effect, by s 62A is granted exclusively to the applicant to deal with all matters arising under the NTA in relation to the claimant application. This proceeding is unequivocally stated to be brought on behalf of the GJJ native title claim group in native title claim WAG 6002/98 and which incorporates WAG 6014/98.

[36] A claimant application within the meaning of s 253 of the NTA, by virtue of NTA s 61(1), may only be brought by a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the native title claimed. Then, under s 61(2)(c) and (d) relevantly, the person is, or the persons are, jointly, the “applicant” and none of the other members of the native title claim group is the “applicant”. Section 62A(a) provides relevantly that in the case of a claimant application the applicant may deal with all matters arising under the NTA in relation to the application. An application for a determination of native title is a representative proceeding.

[37] Mr Roe submitted that s 62A, in its terms, and particularly by use of the word “may” is permissive only but does not confer standing exclusively upon the applicant in respect of dealing with all matters arising under the NTA in relation to the application. I do not accept this submission. One of the main objects of the NTA by s 3(c) is to establish a mechanism for determining claims to native title. An evident purpose of s 62A, read together with s 61, as part of achieving that objective, is to confer upon the applicant, and upon no other members of the native title claim group the entitlement to deal with all matters arising under the NTA in relation to the application.

[38] This, in effect, was the view of Drummond J in Ankamuthi People v State of Queensland [2002] FCA 897; (2002) 121 FCR 68…

[39] The meaning of the word “may” in s 62A is not, in my opinion, informed by cases concerned with whether “may” imports a discretion or whether properly understood it creates an obligation as though the word “shall” or “must” had been used. Rather it is permissive or empowering and is to be read as though it contained the following italicised words “... it is the applicant who may deal ...”. Looked at in that way, having regard to the purposes of the NTA no one else is so empowered, whether or not they are a member of the relevant claim group.

…

…

[42] I accept the submission of the KLC that it is only the applicant in the GJJ native title claim, Mr Roe and Mr Shaw acting jointly, who has standing to sue the KLC on behalf of the GJJ native title claim group. Indeed, as I earlier mentioned, counsel for Mr Roe later acknowledged this to be the case but concluded in effect that the position could be cured through orders which the Court could make under s 84D NTA. I now consider that submission.

42        His Honour then turned to consideration of s 84D of the Act, and referred to the Explanatory Memorandum to the Native Title Amendment (Technical Amendments) Bill 2007 (Cth) which explained the statutory purpose behind the section. In particular, his Honour noted that s 84D empowered the Court to make orders requiring the production of evidence in circumstances where the there is a possible defect in the authorisation of applicant. His Honour also quoted paragraphs from the 2006 “Commonwealth Government, Technical Amendments to the Native Title Act 1993: Second Discussion Paper” which his Honour described as setting out quite clearly the context and statutory purpose behind s 84D, in particular the following excerpts quoted at [46]-[47] of his Honour’s judgment:

The question as to whether identified deficiencies in the authorisation process will be fatal to the claim will, if raised, ultimately be determined by the Court, and it would not be appropriate to seek to impose a blanket statutory rule in relation to this requirement. However, to the extent that lack of authorisation may be regarded as fatal, it would be appropriate to provide an appropriate mechanism through which it may be cured. In particular, this will assist in ensuring the Court will have jurisdiction to determine a claim in which there has been extensive hearings and evidence taken. Accordingly, it is proposed to include a provision which makes clear the Court may make an order to continue to hear a native title determination notwithstanding a defect in the original authorisation process, provided it is satisfied that such an order is necessary in the interests of justice. The Court would be given discretion to make such other orders as are appropriate, including orders dealing with use of evidence received in the proceedings, replacement of the applicants, and notification to other parties.

With respect to the final suggestion, it is not considered possible to specify whether the registered claimants, or the named applicants, must be unanimous in giving instructions or executing agreements. The source of authority for the named applicants will ultimately rest on their authorisation in accordance with the rules established in ss 251A and 251B. This is intended to ensure the process complies with either a traditional decision making process or one otherwise agreed to by the relevant group. It would be inconsistent with the nature of native title rights and interests to superimpose requirements of ‘unanimity’ or majority vote. To the extent that disputes arise in relation to the respective authority of different named applicants, this would need to be resolved in accordance with the provisions for replacing an applicant in s 66B. However, given the concerns identified in the Claims Resolution Review, it would be appropriate to clarify the nexus between s 66B and s 251B. Thus, s 66B should be amended to expressly recognise that s 251B prescribes the decision making process by which authorisation may be withdrawn.

(Original emphasis.)

43        His Honour concluded that s 84D was not a source of power for the Court to make orders in the proceeding – rather it conferred on the Court a discretion in native title proceedings to hear and determine a claimant application notwithstanding any defect in the applicant’s authorisation or to make such other orders as the Court considered appropriate (at [51]).

Tigan

44        In Tigan v Western Australia [2010] 188 FCR 533 the parties agreed on the following facts:

1.    When the Native Title Determination Application in the proceedings was filed in 1998, there were four people who comprised the applicant.

2.    As at 29 June 2010, the applicant consisted of five people – Aubrey Tigan, Lorna Hudson, Henry Mowaljarlie, Valarie Wiggan and David Wiggan. The only one of these who was part of the original group of applicants was Aubrey Tigan.

3.    At a meeting on 29 June 2010 the claim group decided that Western Legal would become the solicitors for the applicant in place of the Kimberley Land Council. The decision was made by resolution of the meeting, with 56 members in favour of the resolution, and 32 against.

4.    Ninety-three members of the claim group attended at the commencement of the meeting.

5.    At the same meeting it was resolved that Western Legal be instructed to file a notice of change of solicitor in these proceedings.

6.    The respondents to the notice of motion instructed Western Legal to file a notice of change of solicitor in these proceedings.

45        The amended notice of motion before Gilmour J was filed by the solicitors for the applicant seeking an order for the removal of the notice of change of solicitor filed by Western Legal ostensibly acting for the applicant. The amended notice of motion was supported by affidavits affirmed by Valarie Wiggan and David Wiggin. The respondents to the motion were the remaining three members of the applicant, Aubrey Tigan, Lorna Hudson and Henry Mowaljarlie.

46        Relevantly, his Honour observed as follows:

10.    A claimant application within the meaning of s 253 of the Act, by virtue of s 61(1) may only be brought by a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the native title claimed. Then, under s 61(2)(c) and (d) relevantly, the person is, or “the persons are jointly, the applicant and none of the other members of the native title claim group ... is the applicant”. Section 62A(a) provides relevantly that in the case of a claimant application the applicant may deal with all matters arising under the Act in relation to the application. An application for a determination of native title is a representative proceeding.

11.    Counsel for the respondents to the motion made two principal submissions. The first is that while the applicant, as defined pursuant to s 61(1) and especially s 62A, may deal with all matters arising under the Act in relation to the application for determination of native title made by Form 1 under s 61, so may the members of the claim group as a whole, by a decision made at a claim group meeting. The second is that in any event, while the applicant is, relevantly, pursuant to s 61(1) the persons, jointly, who are authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, there is no requirement that the persons who jointly are the Applicant must be unanimous in order for them to make a valid decision.

12.    I do not accept either of these two submissions. As to the first, I repeat what I said in Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 that, by s 62A of the Act, it is the applicant who may deal exclusively with all matters arising under the Act in relation to the claimant application. The respondents conceded that the filing of a notice of change of solicitor was such a matter.

…

…

18.    The respondents’ second submission that decisions by persons who together constitute for the purposes of s 61(1) the applicant may be taken by a majority of them is inimical to the object of ss 61 and 62 in the context of the Act as a whole. As Kiefel J said in Butchulla People v Queensland (2006) 154 FLR 233 at [38]:

The evident purposes of s 61 are to provide for representation of the claim group, to limit the number of persons who may act as ‘the applicant’ in the proceedings and, when more than one person is authorised, to require them to act in concert with each other. It may be assumed that since the persons authorised have a common interest in the subject matter of the claim acting jointly should not present a difficulty. (Emphasis added)

19.    The expression in s 61(2)(c) that the persons are “jointly” the applicant is important. “Jointly” relevantly means:

“in conjunction, in combination, unitedly, not severally or separately”: Shorter Oxford English Dictionary.

20.    The respondents relied upon Doolan v Native Title Registrar [2007] FCA 192; (2007) 158 FCR 56 and Chapman v Queensland [2007] FCA 597; (2007) 159 FCR 507 to support this second submission.

21.    These cases do not, in my opinion, support the second submission. Indeed they reaffirm what was said by Kiefel J in Butchulla People.

47        Gilmour J considered Doolan and Chapman and continued:

27.    Two propositions, at least, emerge from these cases. First, they are to be distinguished on their facts from the present case. Here, the Wiggans are both alive and there is no evidence that they are not willing or able to act as members of the applicant. Second both cases cited by the respondent re-affirm the statutory requirement that, although authorised individually, members of the applicant must, in accordance with the Act, act jointly.

28.    The issue raised by the second submission does not concern the authorisation of any of the members of the applicant in that capacity but rather whether they can cause the applicant to deal with a matter arising under the Act in relation to the application by majority decision. My opinion, as I said, is that they can not. They must act in concert. If dissension arises, as it seems has occurred here, between the named persons who are the applicant, then there are procedures under the Act for the native title claimant group to effect a change in the membership of the applicant. Indeed that has been foreshadowed in this case.

29.    The respondents submit that decisions of the National Native Title Tribunal support their contentions upon this issue. The applicant on the other hand has provided very persuasive written submissions that this is not the case, and that the Tribunal’s approach is consistent with that taken in this Court. It is unnecessary, given the conclusion to which I have come, to consider these additional submissions concerning the Tribunal.

30.    It follows, in my opinion, that the action of the respondents in instructing Western Legal to act and to file a notice of change of solicitors were not actions by, or authorised by, the applicant. Accordingly, the Registrar should be ordered to remove the notice of change of solicitors from the court file and to return it to Western Legal.

Consideration

Preliminary observations

48        Before turning to the key question in these proceedings – namely whether, in the circumstances of this case, the decision of a majority of the applicant to file a notice of change of solicitor was effective – I make three preliminary observations.

49        First, Resolution 5 as passed at the claim group’s authorisation meeting of 13 June 2011 was in terms authorising the applicant to withdraw and terminate the instructions of QSNTS and to retain Just Us Lawyers or any other legal practitioner to prosecute the Wulli Wulli claim. I accept the submission of the applicant that, in respect of a claimant application such as the Wulli Wulli claim, the effect of s 62A is that it is only the applicant who is entitled to deal with all matters arising under this Act in relation to the application. The claim group is not empowered by the Act to control the conduct of the application before the Court, including the identity of the solicitors to be instructed by the applicant. That the claim group in authorisation meeting does not have the power to terminate instructions to one firm of lawyers, and to instruct another, is clear from the decisions in Ankamuthi, Roe and Tigan.

50        Having made this observation, however I note that Resolution 5 did not purport to be a decision of the claim group in relation to the identity of the solicitors on the record or even an instruction to the applicant – rather it was in the nature of an expression of the views of the claim group, and an authority granted to the applicant which the applicant was at liberty to accept or reject.

51        Second, it is not in issue that the minority members of the applicant, Mr Elliot Anderson, Mr Desmond Dodd and Mr Jeffrey Williams, are capable, able and willing to continue to serve as members of the applicant. There is no application before me to remove these persons as members of the applicant because they are incapable, unable and/or unwilling to act. Principles specifically relevant to such circumstances are not applicable in this case. However broader principles developed in cases including Butchulla, Doolan and Chapman relating to the role of the applicant are relevant in considering the motion before me.

52        Third, the applicant to the motion submits that the decision of Gilmour J in Tigan is squarely on point. However an key factor which distinguishes the facts before me from those before his Honour in Tigan is that in this case the resolution of the authorisation meeting empowering the applicant included a condition that the applicant was able to make effective decisions by majority. Specifically, while Resolution 4 of the authorisation meeting of 13 June 2011 contemplated circumstances where one or more of the persons comprising the applicant might be incapable, unable or unwilling and authorised the remaining persons to continue to act as applicant – a position supported by the cases I have discussed earlier in this judgment – Resolution 4(c) provides:

The members of the Wulli Wulli Claim group directs that the Applicant must:

…

…

(c) in the event that agreement cannot be reached, make all decisions by simple majority of those present at a face to face meeting or by a simple majority of those persons comprising the applicant providing written or verbal instructions to the Applicant’s legal advisor. All persons comprising the Applicant must abide by the simple majority decision; and

…

Findings

53        In my view, the decision of 12 of the 15 persons constituting the applicant, that a notice be filed changing the solicitor on the record, was effective. I form this view for the following reasons.

54        First, the authorities to which I have referred are unambiguous in finding that the authorisation of each person comprising the applicant in any case is of the named persons, personally: Butchulla at [42], [45], Doolan at [56], Chapman at [9]. While the Macquarie Dictionary (4th ed, The Macquarie Library Pty Ltd, 2005) defines “jointly” as meaning “together, in common”, s 61(2)(c), in its reference to persons being jointly “the applicant” does not create a legal entity itself capable of suing, or imply that the ability of the persons constituting the applicant to act is dependent upon the others continuing to act (Chapman at [9]). Indeed, I respectfully note the point made by Spender J in Doolan at [66]-[67] in relation to the requirement under s 62(1) that a claimant affidavit must be accompanied by “an affidavit sworn by the applicant”, and his Honour’s observation that the requirements of s 62 are satisfied by the filing of affidavits by each of the persons who constitute “the applicant” deposing to specified beliefs. Clearly, s 62 does not contemplate a “joint” affidavit by members of the applicant.

55        Second, while the applicant to the motion relies in particular on s 61(2)(c) and its provision that the persons authorised to be “the applicant” are jointly “the applicant”, the section does not require joint authorisation. I am unable to identify any legislative provision which requires joint authorisation. Certainly s 251B, which deals with the process whereby persons in the claim group authorise persons to be the applicant and to deal with matters arising in relation to the native title determination application, does not require joint authorisation of the persons comprising the applicant. As Logan J observed in Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland [2011] FCA 690:

The relevant authorisation appears in the minutes of the native title claim group meeting of 2 September 2009 exhibited to the affidavit of Moana Biddle filed on 25 September 2009. It authorises the named persons, which comprise the remaining members of the group and Mr William Santo to “make an application in the court”. As was submitted on behalf of the remaining members of the group, the authorisation thus conferred was not expressed in terms of joint authority. Further, and again as submitted on their behalf, the authorisation was in the broadest terms and has not been revoked. It remains the case that, as Kiefel J held in Butchulla, such an authorisation is of each of the named persons personally. In the absence of any contrary indication either in the Native Title Act or in the terms of the appointment itself, and neither contains a contrary indication, the presumptions applied to personal appointments operates. The requirement that the authorised persons act together is a requirement of the Native Title Act not of the terms of their appointment. So far as the terms of each individual member’s appointment are concerned, it continues to operate until it is revoked or until the person ceases to be willing and able to act in a representative capacity. Mr William Santo has given evidence that he is no longer willing so to act.

(Emphasis added.)

56        Third, the operation of s 61(2)(c) is referable to native title determination applications that have already been made. This is clear from the language of s 61(2)(a). To that extent, it appears that s 61(2)(c) operates after the authorisation process has taken place (in accordance with s 251B) and the application has been made by the applicant. It follows that s 61(2)(c) does not affect the nature of the authority conferred on the persons who comprise the applicant.

57        Fourth, the purpose of ss 61(1), 62(2)(c) and 251B is to seek a workable and efficient method of prosecuting claims for native title determination, one which limits the potential for dispute which might stifle the progress of claims (Butchulla at [38], [42], cf Doolan at [65] and Chapman at [11]). Section 61(2)(c), which provides that the relevant persons are “jointly” the applicant, is to be interpreted having regard to that purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382, Butchulla at [37]). An interpretation of “the applicant” within the meaning of ss 61(1), 62(2)(c) and 251B, which gives effect to decisions of the majority of those persons comprising the applicant, is consistent with the purpose of achieving a workable and efficient method of prosecuting claims for native title determinations. I do not consider the notion that the persons comprising the applicant are to act together, is inconsistent with an express term of their authorisation that they may do so on the basis of majority decision, any more than it is inconsistent with an express term of their authorisation that the authorisation is of the persons or so many of them as are willing and able to act (cf Butchulla at [42], Doolan at [57], Anderson at [21], Dodd at [22]).

58        I do not accept the submission of the applicant to the motion that the legislation anticipates the inevitable enlivening of the s 66B procedure, and the associated expense and inconvenience of convening authorisation meetings of the claim group, every time there is a disagreement among those persons comprising the applicant in respect of a decision which cannot be made unanimously. Such a concept is one conducive to stifling the progress of claims, and would be contrary to the purpose of the legislation.

59        Fifth, s 62(1)(c) is a definitional term referring to the persons authorised under s 251B. In other words, while the persons authorised to comprise the applicant are each authorised in their personal capacity, they are nonetheless “jointly” the applicant. They are not authorised separately as multiple applicants in respect of the determination application (cf Butchulla at [39], Lennon v State of South Australia [2010] FCA 743 at [6]) – they are one applicant, acting together and in common.

60        Sixth, and critically, I do not consider that s 61(2)(c) ought be interpreted in such a way as to remove the autonomy of the native title claim group itself to place a condition on the manner in which the applicant can make effective decisions. Section 251B of the Act confers power on the native title claim group to authorise a person or persons to make a native title determination application. As Kiefel J observed in Chapman at [9]:

The continuance of authorisation must depend upon the terms of the authorisation, a matter upon which the NTA did not speak. Section 251B recognises that, in some cases, proper authorisation may require the use of traditional customs and laws. Beyond that, the NTA does not contain any reference to the terms upon which persons may be authorised. (cf Butchulla at [40]-[41])

(Emphasis added.)

61        A similar observation was made by French J in Anderson at [48] where his Honour said:

Alternatively, it may be that the authority conferred upon the applicants is conferred in terms that enable it to be exercised according to a majority vote. That would, however, depend upon the terms of the authority. I express no concluded view on the efficacy of such a procedure.

62        In this case, unlike in Tigan, the Wulli Wulli claim group, in authorising the 15 persons to be the applicant for the purposes of the claim, resolved that those 15 persons be empowered to act in accordance with a decision by majority. It is entirely reasonable, and consistent with the terms and purpose of the Act to promote progress of a claim, that the claim group should be able to so qualify the decision-making role of the applicant. In my view, the Act supports an approach whereby the claim group sanctions decisions of the applicant by majority, and further supports effect being given to majority decisions of the applicant in such circumstances.

63        The appropriate order is to dismiss the notice of motion.

Associate:

Dated:    11 October 2011