French J
The case involved the removal of an applicant who refused to execute an agreement which would hand over native title rights and interests to the State government in the Burrup Peninsula and the Maitland Estates. The applicant, David Walker, had refused to sign the agreement saying that he wanted to obtain separate advice over the agreement. The other applicants claimed that he was not present at previous negotiations. French J discussed the law surrounding ss 251 and 66B(1). He noted that cessation of authority under s 66B(1) is dependent on ‘decision making on the part of the native title claimant group unless it can be said that the authority originally conferred was limited in such a way that it ceased upon the happening of some event without any separate decision being required’: [15]. French J also noted that the criterion of excess of authority under s 66B was less onerous than the criterion of cessation of authority. However he said that the claimant group was still bound by the provisions of s 66B which require:
there be a claimant application; and
that each applicant for an order under s 66B is a member of the native title group; and
the person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or
alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group and the persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it: [17].
There was an issue as to whether the resolution to remove David Walker, who was from the Yindjibarndi group, was validly made, considering that there were predominantly Ngarluma people at the meetings. There was anthropological evidence presented of the membership of the group based on descent, and that decisions were made with both groups present at meetings. French J criticised the process for removing the applicant after considering the circumstances of the meeting (especially the number and composition of the attendees). However he considered the totality of the circumstance especially the time period in which the claimants had been involved in native title and concluded that David Walker was no longer authorised by the claim group.