Mansfield J
This case concerned an application to replace the applicants in a claimant application for the determination of native title over Miriuwung Gajerrong land in the North West of the Northern Territory. Section 66B of the Native Title Act 1993 (Cth) (‘NTA’) provides for the replacement of claimant applicants where the current applicant is no longer authorised by the claim group to make the application or has exceeded authority. There was also dispute over who had authority to act as the applicants’ solicitor.
Background
A similar application was dismissed by O'Loughlin J on 8 February 2002 on the basis that the persons seeking to be substituted as applicants had not been authorised by the native title claim group. The matter was referred to mediation, but was not successful.
In reaching his decision in this case, Mansfield J referred to Alderson v Northern Land Council (1983) 67 FLR 353 where it was stated that determining the traditional Aboriginal owners is a delicate and complex area. His Honour followed the principles in Daniel v State of Western Australia [2002] FCA 1147 and was satisfied that the affidavits provided by anthropologist Mr Barber were accurate. This material found that decision-making is exercised by various local groups or clans. “Dawawang” or traditional owners are responsible for speaking for, and looking after, local areas known as “Dawang”. Furthermore, individual members of the native title claim group who do not agree with decisions reached by the elders do not have a veto right.
Conclusion
His Honour was satisfied that a meeting held on 9 May 2002 was attended by Dawawang of each Dawang that made up the claim area and that at that meeting they decided that the named applicants be replaced by the proposed applicants and that the Northern Land Council (NLC) represent the applicants. His Honour acknowledged that other relevant Dawawang may not have been at the meeting, however, this did not invalidate the decisions reached under the traditional laws and customs of the native title claim group. Orders were made that the current applicants be replaced by the proposed applicants and that the NLC represent the applicants.