Case: Daniel v Western Australia (2002) 194 ALR 278 
Outcome: considered
Section 253 of the Act states that 'authorise', in relation to the making of native title determination applications and dealing with matters arising in relation to such applications, has the meaning given by s 251B. Section 251B states: Authorising the making of applications 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. That definition also applies to the use of "authorise" in s 66B of the Act: Daniel v Western Australia (2002) 194 ALR 278 at [14]. 7 Finally, s 253 provides that "applicant" has a meaning affected by s 61(2) of the Act. That subsection states: Applicant in case of applications authorised by claim groups (2) In the case of: (a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or (b) a compensation application made by a person or persons authorised to make the application by a compensation claim group; the following apply: (c) the person is, or the persons are jointly, the applicant ; and (d) none of the other members of the native title claim group or compensation claim group is the applicant . 8 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. 10 In Daniel 194 ALR 278 at 284, [17], French J outlined the conditions that must be satisfied before an order can be made under s 66B. they are: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. 11 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. 27 A decision of the native title claim group is required by ss 66B(1)(a)(i) to remove the current applicant's authority (see Daniel 194 ALR 278 at [15]). At the commencement of the hearing of the application under s 66B on 12 June 2007, the evidence said to support that that decision had been made was said to come from the affidavit of Ms Mearns. That affidavit outlined the details of a meeting of the Kamu people on 9 February 2007. The meeting did not extend to all members of the native title claim group. In particular, neither Gabriel Hazelbane nor Paddy Huddleston nor other members of the Wagiman people or the Warai people were present. At that meeting, according to Ms Mearns, it was unanimously resolved to remove Ms Foster as a named applicant from the native title determination application and that Margaret Foster and Arthur Que Noy should be named on behalf of the Kamu people as applicants. There was no evidence as to whether minutes, or any record other than what appears in Ms Mearns affidavit, of the meeting were taken. Clearly, the decision of the Kamu people in that regard is not a decision of the claim group itself. Mr Barber's affidavit provided evidence of decisions made by the Wagiman and Warai people subsequent to 12 June 2007 (the first hearing day of the motion). The evidence is that both the Wagiman people and the Warai people after 12 June 2007 decided to support the motion. 28 The Kamu people's decision was, it was submitted, made at the meeting on 9 February 2007. Ms Foster and four of her children, namely Maxine Storer, Michael Foster, Kenny Storer and Lynette Anderson did not attend. On the evidence, two of those children do not actively participate in decisions made by the Kamu group, and the other three persons including Ms Foster were notified of the meeting. There is no other evidence concerning which members of the Kamu people were notified of the meeting, nor how they were notified, nor what they were told would be considered at the meeting. 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] .