Banks-Smith J
Introduction
This was a consent determination of native title over land and waters in Western Australia. The parties requested that the Court make the determination without holding a hearing under s 87(2) of the Native Title Act 1993 (Cth) (NTA). Being satisfied that this was within the power of the Court, and an appropriate course of action, the Court made the determination sought.
Key Issue
The main issue was whether the applicant had correctly authorised the consent determination. All of the applicants were a part of the Budina 2 Working Group (Working Group) which was a subset of the claim group. The Working Group had been authorised by the claim group to make decisions with respect to this claim. Evidence was provided that it was the Working Group that had authorised the consent determination through resolutions passed by unanimous vote at a Working Group meeting. It was suggested by the State that the claim group placed significant limitations on the applicant’s powers, including their role in the authorisation of the consent determination.
As per the judgment in Ankamuthi People v State of Queensland [2002] FCA 897, it is the applicant who has control of the litigation for the claim group. In Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75 Barker J came to the view that the claim group could impose some limitations on the exercise of the applicant’s powers. This was also accepted in McGlade v Native Title Registrar [2017] FCAFC 10.
The Working Group ordinarily made decisions by majority vote, and the applicant was only authorised to deal with matters related to the claim to the extent authorised by the Working Group. In effect, the Working Group had the capacity to usurp the applicant and determine whether to authorise the consent determination. The State submitted that this was contrary to s 62A of the NTA. Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the applicant submitted that the Working Group resolution should be read as having authorised the applicant to authorise the consent determination.
Decision
His Honour declined to read the Working Group resolution in the way suggested by YMAC, and concluded that there had been a defect in authorisation within the meaning of s 84D(3) of the NTA. He also concluded that the applicant had not acted in accordance with their powers under s 251B. However, the Court held that it was appropriate to make the consent determination despite the defect in authorisation for the following reasons:
All members of the applicant voted in favour of the consent order;
The defect in authorisation did not arise out of some dispute within the claim group;
The making of the determination had the knowledge and support of the claim group;
No issues had arisen with respect to the conduct of the Working Group;
The application had been determined to satisfy all conditions of s 109B and 190C of the NTA;
The exercise of power under s 84D(4)(a) of the NTA would result in a timely and satisfactory resolution for all parties;
All of the procedural elements required under the NTA had been met.
His Honour noted that, had the Working Group resolved by majority vote (rather than unanimously) to authorise the consent determination, it is unlikely that he would have been satisfied that there had been due authorisation and would have declined to exercise the Court’s power under s 84D.