Authorisation and applicant decision-making

Project status: 
Past

The recognition of native title in Australia’s legal system has created a unique context for legal principles regarding decision-making, governance, the conduct of litigation and the negotiation of agreements. That unique context arises because of the communal or group-based nature of native title rights and interests. Native title claim groups are not incorporated entities, and the Native Title Act 1993 makes special provision for how their collective will may validly be translated into action. After a determination of native title, decisions about the land will be made by registered native title bodies corporate.

These corporations must make decisions in accordance with statutory and corporate-constitutional requirements.

The law around authorisation and decision-making for native title claims and agreements has evolved over time, and there have at times been ambiguities and uncertainties over what is required of native title representative bodies, claim groups, applicants, registered native title bodies corporate, and other parties. The law in this area has settled somewhat, and the time is right for an up-to-date summary of the present position. This project will provide a clear, concise and practical guide for native title lawyers in relation to authorisation and decision-making processes. The research will ask: what processes does the law require for valid decision-making and action in native title claims, native title agreement-making, and the day-to-day management of native title? In answering these questions, the research will cover legal, ethical and practical considerations.

  • Authorisation law: Describes the legal elements of authorisation in relation to the 1998 and 2007 amendments to the Native Title Act 1993 (Cth). Provides a list of relevant reading for understanding authorisation law.
  • Authorisation cases: Provides summaries of authorisation cases. Describes, where relevant, the major facts of each case and the significant points of law that have been developed. Covers cases from 1999 to 2008.
  • ​Authorisation meetings: The 1998 amendments to the Native Title Act 1993 (Cth) requires, as specified in section 62, that native title or compensation applications are made by person/s that can demonstrate that they are authorised to make the application by all members of the native title claim group. This document provides an overview of how authorisation meetings are organised; who authorises decisions; and how decisions are made.