Native title year in review 2024-2025

What you need to know

• Where a claim group is to be reconstituted, a two-step authorisation process is required. The first step is for the existing claim group itself to resolve to be reconstituted. The second step is for the reconstituted group to authorise the current applicant or a new applicant to make and prosecute the claim on its behalf (Illin on behalf of the Bindal People #2 v State of Queensland [2024] FCA 1242).
• Where there has already been a determination of native title in favour of a group, a further claim by that group must be made by and on behalf of that same group using the same description. A claim that describes the group with a qualifier will be a subgroup and not be properly made under the Native Title Act (Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53).
• Proper authorisation of a claim is fundamental to the legitimacy of the claim. However, the legislature has empowered the Court to hear and determine a claim despite a defect in authorisation. In exercising that power, the Court is required to balance the need for due prosecution of the application and the interests of justice (Nangalaku on behalf of the Dak Djerat Guwe People v Northern Territory [2025] FCA 217).
• Summary judgment can be granted in relation to a native title claim if it is possible to conclude with confidence that there is no reasonable prospect of success, and it is in the interests of justice to do so (eg to avoid the substantial time and expense of a contested ‘on country’ hearing) (Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 3) [2024] FCA 1132).

What you need to do

• Whether it is authorisation of a claim or an ILUA, authorisation meeting resolutions must be carefully and specifically drafted to capture every step in the authorisation process.
• Ensure that future native title claims (and ILUAs) made on behalf of a determined native title holding group are made and authorised by and on behalf of the determined group and not a subset of that group. Get the group description right!
• Don't assume that a defect in authorisation will be 'forgiven'. The Court will not proceed to hear a claim with a substantial authorisation defect if it would prejudice members of the claim group.

Authorisation of native title claims and strike-out applications

We have not written about these issues for some years. However, a number of decisions in the last 12 months have canvassed these issues and these provide a welcome reminder of some important legal principles surrounding authorisation, the exercise of the strike-out power and the availability of summary judgment.

Where a claim group is to be reconstituted, a two-step authorisation process is required

In Illin on behalf of the Bindal People #2 v State of Queensland [2024] FCA 1242, the Court was asked to consider authorisation requirements when a claim group is reconstituted to add a new apical ancestor.

The Court ordered the Bindal People #2 applicant to hold an additional authorisation meeting to authorise the applicant (or a different applicant) to conduct the claim, after an amendment to the claim added a new apical ancestor and thereby reconstituted the claim group.

In the lead up to the hearing of separate questions about a connection issue, the applicant in the Bindal People #2 claim sought leave to amend the claim to add an additional apical ancestor and reconstitute the claim group to add their descendants. They held two authorisation meetings where there was no dispute that the group had validly authorised the amendment of the claim. However, the State and some Indigenous respondents submitted there was insufficient evidence the reconstituted group had authorised the applicant to prosecute the claim, and that another authorisation meeting was required. The applicant argued that authorisation had occurred, but if there was a defect in authorisation, the Court should exercise its power under section 84D to hear and determine a claim despite the defect.

The Court said:

• Although it is true that section 251B does not impose prescriptive requirements as to authorisation of an applicant, it is of central importance to the conduct of native title applications that those who bring them, and exercise the associated rights and responsibilities, have the authority of their groups to do so.
• Where a claim group is to be reconstituted a two-step process is required. The first step is for the existing claim group itself to resolve to be reconstituted. The second step is for the reconstituted group to authorise the current applicant or a new applicant to make and prosecute the claim on its behalf.

The Court held that on a plain reading of the resolutions passed at the authorisation meeting, the reconstituted claim group was authorising the amendment of the claim and the appointment of its legal advisers to prosecute the claim, and no more. The descendants of the new apical ancestor were not given an opportunity to participate in any form of decision about who should represent them as applicant in the claim. The applicant argued that re-authorisation was inferred by the other resolutions, but the Court disagreed.

The Court further held it was not appropriate to exercise the power under section 84D to hear and determine the matter despite the defect in authorisation because this was a substantive defect that would cause the descendants of the new apical ancestor significant prejudice. The only appropriate course was for there to be a further authorisation meeting at which the applicant (or a different applicant) was properly authorised to conduct the claim. The Court ordered this to occur before the hearing of the separate questions.

New claim by a determined group must be made by and on behalf of the same group using the same description

In Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53, the Bigambul #5 claim was struck out on the application of the Gamilaraay claim group on the basis that it was not properly authorised and was brought on behalf of only a subset of the Bigambul People. It followed an earlier decision to strike out another Bigambul claim on the same grounds, also brought by the Gamilaraay claim group (Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450). Both Bigambul claims overlapped the claim area of the Gamilaraay People. We wrote about this earlier strike-out decision in our Native Title Year in Review 2022-2023 article, "Costs update: when conduct becomes costly – the risk of unreasonable behavior in native title claim proceedings".

The Court noted that caution needs to be exercised before a native title claim is struck out. It is only where the application is obviously without merit, for example where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking-out a claim.

The Court was satisfied that the Bigambul #5 Claim should be struck out or summarily dismissed for two reasons:

• First, the Bigambul #5 Claim was brought on behalf of a subset of the Bigambul People. In this case, there had been two determinations of native title in favour of the Bigambul People, both of which described the claim group as the biological descendants of six named ancestors. The Court said that it follows that any further native title claims by the Bigambul People must be by and on behalf of that native title group. However, the Bigambul #5 claim described the claim group differently by adding the qualification “who identify and are recognised as Bigambul People in accordance with the traditional laws and customs acknowledged observed by them”. The Court said that because this was a narrower group than the persons determined to be Bigambul native title holders in earlier determinations, it was fatal to the Bigambul #5 claim.
• Second, the claim was not properly authorised. The Court said the notice for the authorisation meetings was "fatally misleading". The notice purported to arrange for people to come to one of four meetings for the purpose of authorising the Bigambul #5 Claim. In reality only those at the first meeting were given the opportunity to determine the composition of the Bigambul #5 applicant.

Finally, the Court found that the Bigambul #5 claim was an abuse of process. It was filed a few days after the Gamilaraay claim was listed for a consent determination, causing another Gamilaraay consent determination not to proceed (the same thing happened in relation to Bigambul #2 which was also eventually struck out). The Bigambul #5 applicant had ample time to file a further claim following the strike out of the Bigambul #2 Claim. No satisfactory explanation was given for the delay.

Appeal: The Bigambul #5 applicant filed an application for leave to appeal on 20 February 2025 (QUD101/2025). It was heard on 11 August 2025 and the decision was reserved.

Proper authorisation of a claim is fundamental to the legitimacy of the claim

In Nangalaku on behalf of the Dak Djerat Guwe People v Northern Territory [2025] FCA 217, the claim was struck out because it was only authorised by a subgroup of the claim group described in the native title determination application.

The native title determination application stated that the Dak Djerat Guwe claim group comprised 22 clans. However, the claim was only authorised by persons described as the ritual elders of seven of those clans. The applicant contended that, under the traditional law and custom of the Dak Djerat Guwe People, the ritual elders of those seven clans have the authority to make the decision to bring the claim on behalf of all clans.

The Court decided there was insufficient evidence to support this. It could not be satisfied the claim had been authorised by the native title claim group and the claim contravened the principle that a subgroup is not permitted to bring a claim on behalf of the native title holding group.

The Court noted that the applicable principles for the exercise of the section 84C strike-out power are:

• The burden of showing a claim does not comply with a Native Title Act requirement lies on the party bringing the strike-out application.
• Section 84C is concerned with matters of form and authority, not with the merits of the claim.
• The test to be applied is equivalent to the test to be applied on a summary judgment application. That is, it should be approached with caution and should only be allowed where a clear case has been made. As with applications for summary judgment, it is permissible to adduce evidence on the application and the fact that extensive argument may be required is not a barrier to the success of a strike-out application.

The Court said (at [146]):

The Court does not take an excessively pedantic approach to matters of authorisation. To do so would be inconsistent with the purpose of the NTA which is to provide for the recognition and protection of native title. At the same time, proper authorisation of a claimant application is fundamental to the legitimacy of the claim. Where there is an apparent defect in the authorisation of a claim, the Court must undertake a balancing exercise. Under s 84D(4), the legislature has empowered the Court to hear and determine a claimant application despite a defect in authorisation. In exercising that power, the Court is required to balance the need for due prosecution of the application and the interests of justice.

The principles governing the grant of summary judgment in a native title claim

There were six overlapping native title claims in the Geraldton region of Western Australia, brought on behalf of the Nanda People, the Wajarri Yamatji People and the Mullewa Wadjari People, respectively. The applicants in the Nanda and Wajarri Yamatj claims made a joint application seeking summary judgment against the applicant in the Mullewa Wadjari People's claim on the grounds the applicant had no reasonable prospect of successfully prosecuting its case on any of the issues to be decided in a pending hearing of separate questions on connection. The State supported the joint application.

In Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 3) [2024] FCA 1132, the Court granted the application for summary judgment, which allowed the Nanda and Wajarri Yamatji People's claims to move to consent determination of native title.

Hearing the application for summary judgement was in the interests of justice

The Court said at [3]:

In my view particular caution is appropriate when summary judgment is sought in a native title determination application. The preamble to the Native Title Act 1993 (Cth) (NTA) provides that the NTA is intended, amongst other things, to rectify the consequences of past injustices suffered by Australia’s First Peoples, to ensure their full recognition and status within the Australian nation, and to advance the process of reconciliation among all Australians. It is important that applicants seeking a determination of native title are heard, and important too that they feel they have been heard. If an application for determination of native title is decided summarily, without hearing the claimants’ oral testimony they may not feel they have been heard.

The Court was persuaded it was appropriate and in the interest of justice to hear and decide the summary judgment application before the parties were put to the substantial time and expense of a contested ‘on country’ hearing of the separate questions. The circumstances included the Mullewa Wadjari claim group's behaviour in relation to withdrawing from agreements previously reached to settle their disputes with the Nanda and Wajarri Yamatj People. We wrote about the dispute between the claim groups in our Native Title Year in Review 2022-2023 article, "Costs update: when conduct becomes costly – the risk of unreasonable behaviour in native title claim proceedings".

The Court summarised the legal principles governing a summary judgement order as follows:

• Summary judgment is granted only if it is possible to conclude with confidence there is no reasonable prospect of success. This involves practical consideration as to whether the applicants have a more-than-fanciful prospect of success.
• The moving party in the summary judgment application has the onus to establish that the applicant has no reasonable prospect of success on its case.
• The standard of proof in the summary judgment is the ordinary civil standard, being the balance of probabilities.
• If the moving party for summary judgment establishes a prima facie case, the onus shifts to the opposing party to point to some factual or evidentiary issues that make a trial necessary.

Summary judgment granted against the Mullewa Wadjari claim

The Court noted that documentary materials relied on by the parties were substantial and that it had the benefit of all the evidence filed for the separate questions hearing.

It held that the Nanda and Wajarri Yamatji applicants made out a prima facie case for summary judgment and it was therefore necessary for the Mullewa Wadjari applicant to establish specific factual or evidentiary disputes that make a trial necessary. The Mullewa Wadjari applicant singularly failed to establish that there were factual or evidential questions in relation to the separate questions that must be determined at a trial.

The Court noted that its reasons were lengthy but said that the fact that an extensive consideration of the evidence was necessary to conclude that the applicant had no reasonable prospects of success on the issues in the case is not a reason to refuse summary judgment. The Court was also concerned to ensure that the applicant could see that the evidence had been considered.

The Court granted the application for summary judgment and vacated the hearing dates for the separate questions. Consent determinations were made on 13 February 2025 in relation to the Nanda and Wajarri Yamatji claims and there was no order for costs.

Key insights

An overriding theme in each of these decisions is that proper authorisation of a claimant application is fundamental to the legitimacy of the claim.

The Bindal #2 and Bigambul #5 decisions are interesting because unlike many earlier decisions about authorisation, it was not a case of insufficient notification or failure to invite all the claim group to the meeting. The problems related to the resolutions passed at the meetings. The are a reminder of the need for careful and specific drafting that captures every step in the authorisation process. This is just as important for the authorisation of ILUAs.

These cases also confirm that the Court is willing to strike-out a claim or deliver summary judgment if the circumstances require it. This is particularly the case where overlapping claims are being prevented from progressing to consent determination.

Want to know more?

• High price of poor conduct – unreasonable conduct risks costs order, 13 June 2024
• When conduct becomes costly – the risk of unreasonable behaviour in native title proceedings, 3 August 2023