Besanko J
This case was a native title determination application. There were two issues in the case. First, whether the group identified in the application was a native title claim group under section 61 of the Native Title Act 1993 (Cth) (‘NTA’) or a sub-group of such a group. It was held that the applicant’s family group was not a native title claim group but rather a subgroup or a group larger than specified in the application. Second, whether the applicant was authorised by the native title claim group to make the application. On this point it was found that the applicant did not meet the authorisation requirements under s 251B of the NTA. For these two reasons the native title determination application was struck out under section 84C NTA.
Claim group
The applicant in this case belongs to the "Brown Family Group" who have made a native title claim to a large area in central South Australia, including Coober Pedy; it is the same area claimed by the Antakirinja Matu-Yankunytjatjara Native Title Claim Group (“AM-Y claim group”) . After considerable evidence was presented about the identities of parties who appeared to be part of both the Brown Family Group and AM-Y claim group, His Honour referred to four matters which lead to this conclusion that the Brown Family Group is a sub-group of the AM-Y claim group, or at least, of a larger group than the Brown Family Group [at 36]:
Thirteen of the 22 members of the Brown Family Group, as defined in the amended application, are members of the AM-Y claimant group. Two of the people who were in the group in the original application, but removed in the amended application, are members of the AM-Y group.
The evidence from the applicant suggests that she considers membership of the Brown Family Group depends on whether or not the relevant person agrees to be a member.
The applicant is dissatisfied with the way in which the AM-Y claim is proceeding and asked that the Brown Family Group be withdrawn from “the AM-Y claim”.
The applicant states that the Brown Family Group know that there are other families with native title interests in the claim area.
Consequently, Justice Besanko found that the application does not comply with s 61 of the NTA.
Authorisation
Justice Besanko began by outlining the principles relevant to authorisation; noting at [23]:
'There will clearly be cases where it will not be possible to secure the agreement of each and every member of the native title claim group...In recognition of this practical reality, it has been said that there will be no defect in the authorisation where all members of the native title claim group are given a reasonable opportunity to take part in the decision-making process.'
'In cases where an applicant claims that he or she was authorised at a meeting of members of a native title claim group, it will often be necessary to consider the notice given of the meeting in order to determine if all members of the claim group were given a reasonable opportunity to participate in the decision-making process' [24].
The applicant asserts that they were authorised by the elder men and women of the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands to speak for her grandfather's country and was to be responsible for the women's dreaming in the claim area. However, this does not constitute a valid authorisation as there was no evidence of a traditional decision-making process conferring power on elder men and women to confer the relevant authority.
Two meetings are brought into question in these proceedings in relation to evidence of authorisation. Firstly, the applicant asserts that she was authorised at a meeting of the Brown Family Group on 30 May 2008. However, Justice Besanko found that this meeting did not give rise to valid authorisation as at least four people who appear to be part of the Brown Family Group were not notified of the meeting. The second meeting occurred on 8 November 2008. Notice of this meeting was published in the 'Coober Pedy Regional Times' in the following terms:
GENERAL MEETING
BROWN FAMILY GROUP
GENERAL MEETING
Will be held on Saturday. November
8, 2008
2pm at Lot 60 Chadwick Street
COOBER PEDY
For more information phone
86725196
In addition to this notice, 50 letters were sent to 'Brown Family Group claimant members' which were not presented in court. The notice in the newspaper was found to be deficient as it did not 'sufficiently identify the alleged native title claim group such that a person reading the advertisement could determine if he or she was, or may be, a member of the Brown Family Group' [42].
For these reasons, Justice Besanko determined that the applicant was not authorised to act on behalf of the Brown Family Group.