Indigenous Law Bulletin
By Susan Phillips
‘Authorisation’ is a new term in native title practice. It arose from the Federal Government’s controversial '10 Point Plan' amendments to the Native Title Act 1993 (Cth) (the ‘NTA’). Since the amendments to the NTA were passed, native title applicants must clearly demonstrate how they are authorised by the native title claim group whom they represent.
Getting the ‘authorisation’ right, being able to show that it has properly occurred, is vitally important. Without a clear authorisation process, a native title application will not be regarded as properly made. Also, questioning the authorisation of the applicant will be a potential issue in any challenge by opponents to a native title application. It is important to get it right at the outset.
The difficulty is that authorisation is a new term in the native title context. Prior to the amendments to the NTA, native title applicants did not have to formally show in what way their authority to bring the claim had been given. Under the 'old' NTA the process was completely informal. That does not mean that applicants were not authorised by their groups, but they were not called upon to demonstrate, in filing a claim, how the authority of their claim group had been given to them. Often, before the amended NTA claim groups would choose as their applicant a significant Elder, or a number of applicants representing the main family groups who made up the claim. The choice was generally approved by consensus.
This is a review of some of the implications and legislative considerations of the new requirement in relation to native title, particularly in NSW. It is important to note that the impact has not been the same in every jurisdiction, partly because of the various land rights legislative regimes, where they exist, and the different nature of Aboriginal culture throughout Australia.
Both claimant groups and the Federal Court are still working out what authorisation means in practice and it may be some time before Indigenous people know more precisely what they have to do to develop an authorisation process that will work for them in the presentation and management of their claim. However it may well be the case that no matter how carefully an authorisation process has been worked out, it could be open to challenge in the courts.
Apart from conferring authority to lodge the native application, authorisation is also of great importance in the development of the claim and its passage through the different Court and Tribunal processes. Under the NTA applicants have the power to deal with all the matters which arise in the claim including, for example, binding the native title claim group by entering into an agreement which accepts extinguishment of the group's native title. The authorisation process will be what the claim group uses to make decisions as the claim progresses, to bind the applicant to act according to the decisions of the group and to protect the applicant with the authority of the group when steps are taken on the group's behalf by the applicant.
1. A person can make a native title application if they are authorised by all the members of the native title claim group (s 61(1)). That person is the applicant.
2. Authorisation of the applicant must be either the outcome of a traditional process of decision making or ‘where there is no such process’, according to a process agreed to by all the members of the native title claim group (s 251).
3. The applicant must swear an affidavit that they are authorised by all the members of the native title claim group and
4. The applicant must state the basis on which they are authorised (s 62).
5. The applicant has the power to deal with all matters arising under the NTA (s 62A) which includes binding all the members of the native title claim group to Indigenous Land Use Agreements (Div 3, sub divisions B, C, D).
6. Where the application is not certified by the native title representative body the applicant must set out the grounds upon which they are authorised to the satisfaction of the Native Title Registrar (s 190C (4) & (5) in order to pass the Registration Test.
7. Where the application is certified the native title representative body must hold the opinion that the applicant is authorised and set out its reasons (s 202 (5) and (7).
In the sometimes difficult dealings which native title issues provoke, the applicant needs the security of being able to demonstrate that actions taken by them, in the course of native title processes, were authorised by the group. Other parties to acts done by the applicant will infer under the NTA that the group is bound by the applicant. Loss of authorisation by the applicant will be a ground for one or more members of the native title claim group to seek an order from the Federal Court to change the applicant.
Section 251B, referred to above, sets out the alternative processes for authorisation. Interpretation of this section is of crucial importance in commencing and defending a native title application.
Section 251B states:
(a) where there is a process of decision-making that, under the traditional laws and customs [italics added] of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b) where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted [italics added], by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
Traditional law and custom must survive in order for a native title claim to be sustainable at all. The group claiming native title must do so on the basis that they continue to observe and be bound by traditional law and custom Only they have the knowledge of its attributes. However what amounts to surviving traditional law and custom is not only a contested issue within the non-Indigenous legal forum- it can contested by members and those excluded from membership of the proposed native title claimant group.
Determining the nature of the traditional law and custom which sustains a native title claim requires deep self inquiry into the distinguishing characteristics of the group. Distilling law and custom for the purpose of participating in a native title claim is capable of provoking conflict within a group. This may occur not least because articulating and declaring the nature of traditional law and custom - for statutory purposes to do with the recognition by the common law of rights and interests in land on the basis of continued observation of laws and customs - has not been before a necessary part of its continued observance.
Prima facie the applicant must show that they are authorised by all the members of the native title claim group. Before filing an application the group may need advice not only about the sufficiency of the process which it draws from law and custom for the legal purpose created by the NTA but to engage in the kind of consultation leading to that outcome. In order to demonstrate how the authorisation was achieved the applicant must show the basis upon which they are authorised. Careful documentation of the consultations of the group will be relevant to that demonstration. The attributes of traditional law and custom are not within the cognisance of the common law and yet these processes are being evoked to authorise the applicant for the purposes of the NTA.
Whilst it is acknowledged that traditional law and custom adapts over time and is not ‘frozen as at the moment of establishment of a colony’ the unilateral imposition of a requirement that authority devolve upon an individual/s, in a manner possibly antithetical to the law and custom being relied upon, may strike at the heart of that very law and custom at the moment of attempted recognition. The recognition is conditional upon the possible compromise of the values of traditional law and custom to the values of the common law and the exigencies of a statutory regime.
The alternate way of demonstrating that an applicant is authorised under s 251B arises where, in relation to decision-making in compliance with traditional law and custom, ‘there is no such process’. In that event the group must agree to and adopt a process of decision-making for the purpose. This is a troubling proposition. It requires an admission on behalf of the native title claimant group that it has either lost or does not have knowledge of any process of decision-making according to traditional law and custom ‘for authorising...things of that kind.’ Bearing in mind the requirement that native title claims are concerned with the recognition of rights and interests ‘possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders’ a prima facie admission that the group lacks a decision making process, according to traditional law and custom sufficient to enable it to deal with participation in native title processes, would appear damning.
However to accommodate this alternative it could be suggested by the native title claimant group that, given the concerns expressed above about the sui generis nature of native title rights and interests and the intersection for the first time of common law and Indigenous law, there cannot be a decision making process derived from traditional law and custom about ‘things of that kind.’ It is therefore open to a group to say it has never made such decisions under its law and custom, for example acceptance of extinguishment and must therefore develop a suitable process for the purpose of engaging in a native title application. In that event the group must identify a decision-making process it has agreed to and adopted in order to authorise the applicant.
It is important when deciding upon which basis authorisation will be conferred to respond to the way in which the claimant group wishes to, and does in fact, operate. Many times claimant groups in south-east Australia have to rebut presumptions that they have lost law and custom or that their practice of culture is diminished due to the impact of dispossession and colonisation when what is present is a vibrant and creative adaptation of tradition and commitment to an evolving culture. It may be possible in describing the authorisation process followed to outline features of observed traditional law and custom which inscribe the process agreed to and adopted.
Challenging authorisation in the courts
The Federal Court has considered the authorisation issue in three recent decisions.
In the decision of Wilcox J in the Moran proceedings his Honour found that
...the authorising individuals must amount, collectively, to “the persons in the native title group”. Perhaps there need not be an authorisation by every individual in the group, but it must at least appear that the authorising individuals constitute a majority of the members of the group.
Wilcox J found that the applicant had failed to show she was authorised by the claim group, a fatal flaw which foredoomed the applications which were then dismissed.
In Strickland v Native Title Registrar French J considered the sufficiency of description of the decision-making process. In the claim as filed the applicants affirmed/swore:
(d) [T]hey are authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and
(e) They are so authorised by their descendants in accordance with a traditional custom acknowledged by the members of the native title claim group of younger generations respecting elder generations and elder generations having authority to make decisions and deal with matters relating to traditional interests in land and waters on their own behalf and on behalf of younger generations.
His Honour reviewed both the application and the reasons of the delegate. His Honour found that the affidavit met the requirements of s 190C in relation to demonstration of authorisation of the applicants.
The decision of Carr J in State of Western Australia v Native Title Registrar arose from an objection by the State of Western Australia that the Registrar had allowed an application to pass the registration test when not all the persons who could have been members of the native title claim group had been named. In the claim the members of the group had been described as:
1. The biological descendants of certain named people;
2. Persons adopted by the biological descendants of the named people.
Hi s Honour referred to this method of identification as the ‘Two Rules’ and found:
The question is whether the application of the Two Rules describes the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is in that group. In my view it does. The starting point is a particular person. It is then necessary to ask whether that particular person, as a matter of fact, sits within one or other of the descriptions in the Two Rules. I think that the native title claim group is described sufficiently clearly. In some cases the application of the Two Rules may be easy. In other cases it may be more difficult.......It may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is on the group as described. But that does not mean the group has not been described sufficiently.
The objection of the State was dismissed.
These judgments indicate that the Federal Court is interpreting the provision pragmatically, remaining aware of the way in which the claimant groups will have to work within s 251B. The divergence of approaches in the decisions indicate that the question of authorisation can be managed in a number of different ways. The decisions search for workability, considering each situation on its merits – balancing the need for inadequately authorised native title applications not to proceed further while not making the requirement for authorisation so onerous that it becomes an impossible barrier for Indigenous groups.
Whether the rubric of the process is that of traditional law and custom or one of a process adopted and agreed, authorisation poses the fundamental challenge of how a group of people will organise themselves to seek and achieve a common goal. The capacity of any native title claim group to sustain itself through the challenges of native title procedures will rely upon a soundly developed authorisation process. Many of the pre-amendment claims have shown the difficulties of participating in native title procedures where a group is only informally organised, if at all. The fact that the authorisation process will require groups to examine the proper flow of authority from the members to their representative and back will confer a benefit on the groups so that they confront issues which might de-stabilise them, at the threshold of the claim process. Describing and committing to a process, whatever its source should assist groups to deal with some of the fundamental issues and material which a native title claim requires with hopefully a less internally divisive path through native title procedures.
Susan Phillips is a Barrister in Sydney.
 Another area from which guidance can be drawn is the experience in the Northern Territory under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In a 1987 amendment to that Act s 77A was introduced which is similar in wording to s 251B NTA. There is only one reported case arising from consideration of the operation of s 77A, that of Muirhead J in Alderson v Northern Land Council (1983) 20 NTR 1, where his Honour found that a traditional decision making process was demonstrated through anthropological evidence before the Court.
 . Recent decisions in the Federal Court show some of the developments so far in interpretation, Strickland v Native Title Registrar (‘Moran’), Western Australia v Native Title Registrar and Moran v Minister for Land and Water Conservation  FCA 1637 25 November 1999.
 s 223 NTA (and see Pareroultja v Tickner)  FCA 465; (1993) 117 ALR 206 Decision of the Full Federal Court.
 Mabo v Queensland [No 2](1992)  HCA 23; 175 CLR 1, 57 (Brennan J); Yanner v Eaton  HCA 53, 7 October 1999 (Gummow J), 22.
 See for example the decision of Olney J in The Yorta Yorta People v State of Victoria and Ors Fed C of A, Olney J No 6001/95, 18 December 1998, para 130.
 NTA s 62(1)(iv)
 NTA s 62(1)(v)
 Mabo  HCA 23; 107 ALR 1, (Deane and Gaudron JJ) 83.
 NTA s 223(1)(a).
 In the Moran case, above note 4, Wilcox J seems to imply that any such process may be one which operates according to customary law even where it is a completely new creation for the purpose of authorisation at para 34.
 Moran, above n 4, para 41.
 Strickland, above n 2, para 56.
 Above n 2, para 64.
 Ibid para 64.
 Ibid para 67.