Case: Quall v Risk [2001] FCA 378
Outcome: followed
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for. 69 In Bodney v State of Western Australia [2003] FCA 890 ( Bodney ), before Wilcox J, the parties accepted the adoption of the approach in Quall v Risk . The Full Court in Bodney v Bropho (2004) 149 FCR 77 did not find it necessary to determine this issue because the parties had accepted the approach in Quall v Risk : see the judgments of Spender J at [1], Branson J at [15] and Stone J at [55]. 70 Emmett J in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 ( Wharton ) considered O'Loughlin J's decision in Quall v Risk in the context of a notice of motion to strike out a native title determination application under s 84C of the NT Act. His Honour drew attention to item 21 of Sch 5 to the amending Act which provided as follows: 'Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.' 73 The decision in Wharton was the subject of an application for leave to appeal to the Full Court, which comprised Ryan, Finn and North JJ: Branfield v Wharton [2004] FCAFC 138. The application was refused. Their Honours were prepared to assume the existence of the principle said to be established by Quall v Risk for the purposes of the application. However, at [12], their Honours found that the applicants had not established any error made by Emmett J in the application of the principle. 74 Before the Full Court in Wharton , the State of Queensland argued that Quall v Risk was wrongly decided, and that an application under s 84C of the NT Act in respect of an application for a determination of native title commenced before the amending Act was to be considered under the old s 61, whether or not there were amendments made to the application after the commencement of the amending Act. The Full Court found that it was unnecessary to decide this point, and that '[c]onsideration of that argument should await a case in which its determination is required by the facts of the case': at [13]. 75 On that state of the authorities, in my view I should follow the approach in Quall v Risk . It is a decision of some years' standing, and has been followed in a number of subsequent single judge decisions. Counsel for the first applicant did not contend that it is clearly wrong. Consequently, the next step is to determine whether the requirements of the new s 61 were fulfilled in relation to the applications comprised in the consolidated proceedings. 76 As noted above, s 61 requires that a person who makes an application for a native title determination be 'authorised by all the persons (the native title claim group ) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed ...'. "Authorised" is defined in s 251B as follows: 'For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation 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 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, 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.' 78 The requirement that 'all' persons of the group are to authorise the applicant to make the application does not mean that every single person must give their authorisation. In Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [25] , Stone J held that s 251B(a) and (b) provide the means by which 'all the persons in a native title claim' are taken to have given their authorisation. Similarly, O'Loughlin J in Quall v Risk at [33] held that 'all' cannot mean every member of the group. Further, there is no prescribed procedure in the NT Act by which each member of the group authorises an applicant to bring an application, indicating that as long as a decision-making process is adhered to as outlined in s 251B, the authorisation will be valid.