Case: Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31
Outcome: cited
As Lindgren J commented in Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 at [72] : "The expression 'native title claim group' is defined in s 253 to mean, relevantly, the native title claim group mentioned in this passage. The expression is commonly and understandably used to refer to the group on whose behalf a native title determination application claimant application is made. Indeed, Form 1, prescribed by para 5(1)(a) of the Native Title (Federal Court) Regulations 1998 (Cth), uses the expression in that sense, treating 'claimants' and members of the 'native title claim group' as synonymous. But there is no escaping the fact that the 'native title claim group', all of whose members are required by s 61(1) to authorise the applicant to apply, is a group constituted by all the actual holders, according to their traditional laws and customs, of the common or group rights or interests comprising the particular native title claimed." 25 Section 61(4) provides that where a native title application is one authorised by a claim group the application must (a) name the persons constituting the group or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. 26 "Authorisation" for the purposes of s 61(1) is defined in s 251B as follows: "For the purposes of this Act, all the persons in a native title claim group ... authorise a person or persons to make a native title determination application ... and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group ... must be complied with in relation to authorising things of that kind the persons in the native title 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 ... 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, by the persons in the native title 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." (Original emphasis) 29 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd , Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240."