Smallwood on behalf of the Juru People v State of Queensland

Smallwood on behalf of the Juru People brought a claim against the State of Queensland regarding the replacement of applicants in a native title determination application. The legal issue at hand was the interpretation of the resolution appointing persons to be members of the replacement applicant and whether it was necessary for each of the nine named persons or their individual substitutes to be part of the replacement applicant named in the Court's order under s 66B(2) of the relevant Act.

The Court examined the legislative scheme to understand the role of an applicant in a native title determination. The Act specifies that a native title determination application can be made by a person or persons authorised by all members of a native title claim group who hold common or group rights and interests. The native title claim group can authorise a person or persons to make the application and deal with matters related to it. Under s 66B(1), one or more members of the native title group may apply to the Court for an order to replace the current applicant on certain grounds, including consent, incapacity, loss of authorisation, or exceeding the authority to make the application.

The Court concluded that the resolution appointing persons to be members of the replacement applicant was not strictly necessary to be a member of the replacement applicant named in the Court's order. The key consideration was the authorisation of the replacement applicant by the native title claim group, which could be demonstrated by the meeting of elders held on 21 February 2014. The Commonwealth, having seen the evidence of this meeting, indicated it neither consented to nor opposed the making of the order for replacement of the applicant, considering it open to the Court to view the elders' meeting as authorising the eight willing replacement members to be the replacement applicant.

The Court's decision recognised the flexibility in the legislative scheme concerning the replacement of applicants in a native title determination application, focusing on the authorisation process rather than a rigid requirement of specific named members. The Commonwealth's stance, based on the elders' meeting, supported the Court's interpretation, leading to the conclusion that the replacement applicant could be authorised without each of the nine named persons or their substitutes being members of the replacement applicant.