Case: Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240
Outcome: cited
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 (' Tilmouth '). The Commonwealth submits that irrespective of whether the combined Maduwongga application is an amendment or is a new application, authorisation of the present Maduwongga application on behalf of the Strickland/Nudding group by the original Maduwongga Claim group is still required. The Commonwealth relies on Tilmouth . Ms Tilmouth's application concerned three separate parcels of land, all of which were within or close to the area covered by an application for a determination of native title on behalf of the Larrakia people that was already pending in the Court. Ms Tilmouth was a dissident claimant within that group. Ms Tilmouth made her application on behalf of the Yirra Bandoo, an acknowledged sub-group of the Larrakia people, in competition with that of the Larrakia people. Her application was in respect of Larrakia land in relation to which the Yirra Bandoo had a special interest. O'Loughlin J concluded that Ms Tilmouth's application was incompetent. His Honour relied, not upon any provisions of the NTA or of the FCRs, but on the concept of community defined in certain passages from Mabo (No 2) at 61, and Ward FCAFC at 371-2. In the passage from Mabo (No 2) , Brennan J stated: so long as the people remain an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under traditionally based laws and customs, as currently acknowledged and observed.' O'Loughlin J took his Honour's remarks to indicate that 'community is a composite whole as distinct from subgroups of subsets or clans or divisions within that larger community...' (at 241). He considered that Brennan J's idea of 'community' and 'communal' had also been emphasised by Beaumont and von Doussa JJ in Ward FCAFC at [201] and [204]. O'Loughlin J concluded (at 242) from these passages that the smaller group (the Yirra Bandoo) could not make an application for native title. The circumstances of the present case differ from those in Tilmouth . In that case, the application on behalf of the larger group remained on foot, whereas the Strickland/Nudding group's claim has supplanted that of the Maduwongga people. If the original Maduwongga Claim group actually held the particular native title claimed, its authorisation of the present Maduwongga application (on behalf of the Strickland/Nudding group) would be required by the terms of s 61(1). But I am addressing the present question on the hypothesis that the Maduwongga application has not yet been heard and determined, and that it is not yet known who, if anyone, actually holds the common or group rights constituting the particular native title claimed. In these hypothetical circumstances, s 61(1) does not, in terms, require that the making of the application on behalf of the Strickland/Nudding group be authorised by the original Maduwongga Claim group. Nor do I see any reason why it should be assumed against the Maduwongga applicants for the purpose, that the members of the original Maduwongga Claim group hold the particular native title claimed. The Maduwongga applicants are not pursuing the present application on behalf of that larger group, but on behalf of the smaller Strickland/Nudding group.