Barker J
In this matter the Court considered an application to replace the current applicant under s 66B of the Native Title Act 1993 (Cth) (NTA) and whether the replacement applicant comprised members of the claim group and was authorised by the claim group.
The replacement applicant sought to replace the current applicant on the basis that relevant members of the current applicant have either consented to their removal or replacement, or are deceased.
Consideration
The Court was satisfied that the requirements of s 66B of the NTA had been met because:
the replacement applicant, which makes the interlocutory application, is comprised of persons who are members of the claim group;
Mr Monaghan consented to his replacement or removal;
three named applicants were deceased;
the replacement applicant is authorised by the claim group to make the claimant application and deal with matters arising in relation to it; and
there is no reason why the orders sought should not be made.
Authorisation
Barker J considered the issue of authorisation and noted under s 251B(b), where there is no traditional decision-making process, that this does not import a requirement for all members of the claim group to be involved in the decision-making process, or that the vote be unanimous. Barker J stated at [12] that:
'it requires giving to persons whose whereabouts are known, and have capacity to authorise, a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process.'
Orders
The Court ordered that Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor and Jean Walker, replace the current applicant, the heading of the claimant application be amended to reflect the names of the new applicant and service of the application and supporting documents on any respondent other than the State of Western Australia is dispensed with.