Rares J ordered that the current applicant be replaced by the replacement applicant in accordance with s 66B Native Title Act 1993 (Cth) (NTA).
Background
On 1 November 2013, Rares J ordered that two claims under s 64(2) of the Native Title Act 1993 (Cth) (NTA) (one in 2010 and one in 2012) be heard as one application. The 2012 application was made over a larger area, completely covering the 2010 application area. The applicants were the same.
In 2013 research was commissioned by the North Queensland Land Council (NQLC) on behalf of the current applicant. This led NQLC to seek instructions from the Juru claim group about whether the claim group description should include an additional apical ancestor, Rosie Wake. The current applicant decided to seek authorisation for a reconstituted claim group, and instructed NQLC to call an authorisation meeting for the claim group to consider the inclusion of Rosie Wake and other matters. NQLC gave public notice of three meetings, which had the following outcomes:
the inclusion of Rosie Wake as an apical ancestor and combination of the two proceedings.
the authorisation of the replacement applicant for the combined claim, including substitution arrangements, so that each of the nine nominees had an alternate if they passed away, were unwilling or unable to act. David Morrell was nominated as the alternate for Andrew Morrell – neither Andrew or David were present at the meeting.
authorisation to enter into a number of ILUAs. All of the persons other than Andrew and David Morrell prepared affidavits under s 62 of the NTA, they sought to proceed an interlocutory application under s 66B.
This matter previously came before Rares J on 17 February 2014, following the hearing of an interlocutory application under s 66B. The Commonwealth applied for an adjournment as it contended that there were conflicting decisions of single judges of the court as to whether an order could be made under s 66B(2) where not all of the persons authorised to comprise a replacement applicant by a claim group were ready, willing or able to the support the application.
Construction of s 66B
Rares J considered how the NTA operates with respect to the replacement of an applicant. Firstly, the Court must be satisfied with one or more of the following; (i) consent; (ii) death or incapacitation; (iii) person no longer authorised; or (iv) person has exceeded authority (s 66(1)(a)). Secondly, that the person/s seeking to replace the current applicant must be authorised by the claim group to make the application (s 66(1)(b)). Rares J found that, as nothing in s 66B requires the replacement of the current applicant merely because any of the circumstances in the above criteria has occurred, the NTA does not provide that the remaining members of a current applicant have to be re-authorised (at [28]). Rather, it is a ground that the claim group can invoke to authorise a replacement applicant under s 66B(1).
At [37] Rares J found that ‘given that life is full of vicissitudes… it is unlikely that the Parliament intended that a claim group had to make a fresh authorisation under s 251B every time one of the number of persons whom it had appointed jointly with others to act as an applicant fortuitously died or became incapacitated in the period between the authorisation meeting and the formality of the institution of the proceedings in the Court or the making of a Court order under s 66B(2).’
His Honour distinguished between instances where a claim group expressly provides that particular groups be represented by particular named persons, and cases in which the ordinary course of appointing an applicant is ‘not a personal appointment’ (at [39]). The resolution in question did not fall into the first category, nor did it require that any of the original nominees or their substitutes actually accept the nomination. At [43] Rares J held that the substitution provision should be understood in the context in which the meeting occurred, and that an ordinary reasonable person with the knowledge of the laws and customs of the claim group would have not understood that the resolution could be frustrated if any one of the nine named persons or substitute was not able to take up the appointment. At [46] His Honour held that ‘the conferral of authority in the resolution, on its proper construction, did not make it essential that each of the named persons or his or her substitute take up that authority’. His Honour was also satisfied that each of the three meetings was validly conducted.