Case: Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703
Outcome: considered
Before moving to the requirements of s 66B, there are two technical matters that are necessary to address. First, the section refers to replacing "the applicant", which is defined in s 253 by reference to s 61(2) to include jointly all of the persons authorised under s 253 to make the application. Thus, the motion under s 66B should be to replace all of the named applicants, despite the fact it proposes that some of them are to retain their status (see Daniel 194 ALR 278 at [5]; Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [46] ). That is a practical, but not a substantive, issue where not all of the persons who are named applicants are sought to be replaced, but it is not inconsistent with recent authorities which hold that authorisation under s 251B is held by persons individually, rather than by those persons jointly as "the applicant" (see Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233 at [45] ; Doolan v Native Title Registrar (2007) 158 FCR 56 at [60]). In this matter, the terms of the motion intended, and would practically operate, to remove only Ms Foster as a named applicant and to replace her with her daughter, Margaret Foster, another member of the Kamu people. The other named applicants would retain their status. But, the motion may be regarded alternatively as achieving that purpose by seeking to replace "the applicant" including all of the named applicants, and replacing them with a new "applicant" including the existing named applicants except for Marjorie Foster and adding Margaret Foster. 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. 40 As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .