Case: Ward v Northern Territory (2002) 196 ALR 32
Outcome: cited
A careful reading of s 66B(1) indicates that the cumulative grounds upon which the motion under s 66B may be brought, that is, one of the two alternatives in ss (1)(a)(i) or (ii) and the ground in ss (1)(b), refer to the application for the determination of native title under s 61 of the Act. They focus upon the status of the current applicant to make the application or that applicant's conduct in relation to that application, and upon the putative applicant's authorisation to make and deal with matter arising in relation to that primary application. The status of the proposed new applicant to pursue the motion under s 66B require those cumulative conditions to be satisfied, but not necessarily an explicit separate authorisation by the claim group to seek an order under s 66B. That status already exists if there is an authorisation of the claim group under s 251B to make the claimant application itself and to deal with the matters arising in relation to it: see eg Ward v Northern Territory (2002) 196 ALR 32 at 38, [15]. In Daniel 194 ALR at 296, [53] that particular issue does not appear to have been contentious or therefore to have required particular remark. Nor, in my view, did it arise in Chapman v State of Queensland (2007) 159 FCR 507 to which my attention was drawn by senior counsel for Marjorie Foster. 15 To satisfy the condition in ss 66B(1)(a)(ii), the s 66B applicants must show the extent of the authority given to Ms Foster by the claim group and point to conduct said to have exceeded that authority. There is no requirement under that subsection for a decision to be made revoking such authority: Daniel 194 ALR 278 at [15]-[16]. In that case, at [16] French J said: If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group. In a case where an applicant does not comply with such a resolution or direction, it is reasonable to say that the applicant has exceeded the authority given to him or her by acting in contravention of the claim group decision. The criterion of excess of authority as a condition of the power under s 66B may be less onerous than the criterion of cessation of authority. It does not require a separate decision-making process in order to establish it. It is also consistent with a beneficial construction of s 66B as a facultative provision directed to maintaining the ultimate authority of the native title claim group. See also Ward v Northern Territory of Australia (2002) 196 ALR 32. 29 Spender J in Mandingalbay [2004] FCA 1703 said at [41]: The absence or even dissent of various members of a native title claim group will not necessarily be fatal to a s 66B application. See for example, Ward v Northern Territory (2002) 196 ALR 32, and Wiradjuri Wellington v New South Wales Minister for Land and Water Conservation [2004] FCA 1127 , where the absence from the relevant meeting of an applicant whom the meeting resolved to remove was not fatal to the application to have her removed under s 66B of the Act. Whether the resolutions were authorised by the claim group requires consideration as to what was the appropriate decision-making process and whether it was followed. 39 I am mindful that the status of an applicant to bring a native title determination application is of central importance: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43] . See also Ward 196 ALR 32 at [15] and [40].