Update on authorisation of claims

In our 2017 Native Title Year in Review, we reported on the results of a section 66B application to replace the applicant in the Gomeroi native title claim,  (Authorisation under the spotlight).

In December 2017, the Federal Court ordered that 19 persons (Former Applicant) be replaced by a new applicant (Current Applicant) (Gomeroi People v Attorney General of New South Wales [2017] FCA 1464).  The trial judge acknowledged problems with the conduct of the meeting which authorised the change in applicant.  However, he was not satisfied that these defects individually, or when taken together, would have changed the outcome of the claim group's decision. 

The Former Applicant applied for leave to appeal the decision.  

In late 2018, the Full Court dismissed the application for leave to appeal (Boney v Attorney General of New South Wales [2018] FCAFC 218).  In assessing whether to grant leave, the Full Court needed to be satisfied that the applicant for leave had established that the trial judge's decision was infected with sufficient doubt to warrant the grant of leave and that substantial injustice would result from its refusal.  The Full Court's decision to deny leave effectively supports the trial judge's view, also applicable in other authorisation scenarios, that the key issue is whether defects in meeting processes adopted can be said to have made "no material difference" to the meeting's outcome.