Case: Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31
Outcome: considered
The subject and significance of authorisation has been considered in detail recently by Lindgren J in Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 at [1168] ff. As a matter of convenience, I gratefully adopt what his Honour said (at [1170]-[1172]): "1170 Under the Old NTA a native title determination application was able to be made by, inter alia, '[a] person or persons claiming to hold the native title either alone or with others': Old NTA s 61(1). An applicant did not have to be authorised. The [1998] Amending NTA introduced, in the amended s 61(1), a requirement that an application must be authorised by the native title claim group. 1171 'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd, Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland [(1999) 168 ALR 242] at 259-260. 1172 Where 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 [(2000) [2000] FCA 652 ; 99 FCR 33] 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 [[2002] FCA 1342] 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] ; Diere 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 ')." 20 I need only note that authorisation has been the rock upon which Mr McKenzie's two native title determination have foundered. 21 On the filing in the Court of a s 61 application, a copy of it and prescribed accompanying documents must be given to the Native Title Registrar who in turn is required to provide copies of the application and accompanying documentation to the relevant Minister for any State or Territory in which any area covered by the application lies as well as to the representative bodies covered by the application: NT Act s 63 and s 66(1)-(2A). As well the Registrar must under s 66(3)(a) give notice containing details of the application to a prescribed list which includes "(a) ... (i) any registered native title claimant in relation to any of the area covered by the application; and ... (vii) if the Registrar considers it appropriate in relation to the person any person whose interests may be affected by a determination in relation to the application; and ... (d) notify the public in the determined way of the application." 31 This question arises because, for s 225 purposes, a determination of native title is a "determination whether or not native title exists in relation to a particular area". An order, for example, dismissing an application for a native title determination on the grounds of failure of proof is not a determination of native title. It is not a determination that native title does not exist: Harrington-Smith v State of Western Australia (No 9), at [4005]. In Western Australia v Ward (FC) at [219] Beaumont and von Doussa JJ indicated that, notwithstanding the "either or" character of the s 225 definition, it was open to a trial judge as a matter of discretion to decide that the Court should decline the jurisdiction to make a negative determination if the interests of justice so required. Their Honours instanced a situation where the evidence failed satisfactorily to disclose one way or the other whether or not native title existed. I would add that it is by no means uncommon for a trial judge to be in a position of finding that, though a claim group has failed to establish native title rights and interests in a particular area on the basis it chose to advance its case, the evidence nonetheless has suggested the possibility that, if the case had been conducted differently, at least some members of that group may have been able to establish native title rights and interests: cf Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150 at [791] ; and see Jango v Northern Territory [2007] FCAFC 101 at [75] ff; see also Quall v Northern Territory [2007] FCAFC 46. 32 In describing a s 225 determination as the "end-point" of the native title claim process, the Commonwealth attributes to it the function of finally resolving the legal status of the area subject to a claim for native title purposes. Such a determination can properly be said to have that effect in the scheme of the Act given the significance attributed to "an approved determination of native title" in ss 13, 61A and 68. Nonetheless, as Beaumont and von Doussa JJ indicated in Ward , s 225 does not indicate that a negative determination must be made in all cases in which a claimant application is not made out fully or at all. The reason I emphasise this is that the discretion not to make a negative or, for that matter, an exclusive positive determination may be of no little significance in cases where native title is asserted defensively by a respondent to s 61 proceedings. 38 On appeal, Beaumont and von Doussa JJ concluded of this ( Western Australia v Ward (FC) at [192]-[193]): "192 In our opinion Lee J was plainly correct in so holding. Even if the Balangarra Peoples had not obtained leave to be joined as an applicant, and had participated in the hearing as respondents, the jurisdiction of the Court extended to making an order which determined that they held native title rights and interests within the determination area. Section 225 expressly requires the Court to determine the persons or each group of persons holding the common law rights comprising native title, and the nature and extent of those rights and interests. Section 225 does not limit the jurisdiction of the Court solely to defining the rights and interests of the named persons who initiate the claim for a determination of native title . 193 Section 213(1) of the NTA provides that if, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the NTA. In our opinion that requirement was fulfilled in respect of the determination in favour of the Balangarra Peoples. The Balangarra Peoples were parties claiming an interest in the area the subject of the claim. They became parties as respondents pursuant to s 68 of the old Act. Their participation in proceedings was therefore in accordance with the procedures of the NTA and, as we have noted, the provisions of s 225 and the in rem nature of the proceedings required the Court to make a determination in respect of the rights and interests claimed by them. Upon their establishing the rights and interests claimed, they were entitled to a favourable determination declaring those rights and interests. The fact that the trial judge, as a matter of procedural convenience, gave leave to the Balangarra Peoples to become applicants, did not affect the jurisdiction of the Court to make a determination in respect of their rights and interests. Moreover, when judgment was delivered, s 67 of the new Act required that the Court make such order as it considered appropriate to ensure that the overlapping claim of the Balangarra Peoples be 'dealt with in the same proceeding'." Emphasis added.