Case: Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212
Outcome: considered
Also relevant, so far as the meaning and effect of s 251B of the Native Title Act is concerned, is a decision of the Full Court, to which I was not referred by QWI: Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 (North, Weinberg and Greenwood JJ). In that case (at [18]), the Full Court made the following remarks concerning s 251B: Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question. The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied. 71 The following may be distilled from these authorities concerning s 251B: (a) the effect of the s 251B is to give the word 'all' in, materially, the table which appears below s 61(1) a more limited meaning than it might otherwise have; (b) in those cases where there is no relevant traditional decision-making process, s 251B does not mandate any one particular decision-making process, only that it be one that is agreed to and adopted by the persons in the native title claim group or compensation group; (c) "agreed to and adopted by" imports the giving to all of those whose whereabouts are known and have capacity to authorise a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process; (d) unanimous decision-making is not mandated; (e) agreement to a particular process may be proved by the conduct of the parties even in the absence of proof of a formal agreement. 72 Section 251A plays an identical role in relation to native title group "authorisation" decisions as referred to in s 24CG(3)(b)(ii) to that which s 251B plays in relation to native title claim group "authorisation" decisions under s 61 of the Native Title Act . The language employed in s 251A compared to that in s 251B is very similar and each gives content to the word "authorise" in a provision in which the word "all" appears in relation to the making of "authorisation" decisions. The analogy of application between the two sections is indeed a close one. In my opinion therefore, each of the propositions which I have distilled from cases concerning s 251B has like application, mutatis mutandis , to the meaning and effect of s 251A and in relation to the impact of that section on "authorisation" for the purposes of s 24CG(3)(b)(ii) of the Native Title Act . In turn that means that the Delegate was entitled to conclude that the "second condition" for which s 24CL of the Native Title Act provides was satisfied.