FEDERAL COURT OF AUSTRALIA

Lansen v Northern Territory of Australia [2016] FCA 1535

File number:

NTD 6016 of 2000

Judge:

WHITE J

Date of judgment:

16 December 2016

Catchwords:

NATIVE TITLE – applicant to native title claim deceased – application to replace applicant pursuant to s 66B of the Native Title Act 1993 (Cth).

Held: deceased applicant replaced.

Legislation:

Native Title Act 1993 (Cth) s 66B

Date of hearing:

27 October 2016

Registry:

Northern Territory

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

7

Solicitor for the Applicant:

Ms A Gibson of the Northern Land Council

Solicitor for the Northern Territory of Australia:

Ms J Laurence, Ms K Edlund and Mr L Peattie of Solicitor for the Northern Territory

ORDERS

NTD 6016 of 2000

BETWEEN:

LANSEN ON BEHALF OF THE MARA, ALAWA, YANYUWA AND THE GURDANJI PEOPLE (Lorella Downs)

Applicant

AND:

NORTHERN TERRITORY OF AUSTRALIA

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

27 OCTOBER 2016

THE COURT ORDERS THAT:

1.    Pursuant to s 66B of the Native Title Act 1993 (Cth), David Harvey and Graham Friday (the Replacement Applicants) replace the current applicant in the proceedings;

2.    The heading of the claim and application be amended to reflect the names of the Replacement Applicants.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    On 27 October 2016, I made an order that two persons replace the current applicant in proceedings for the determination of native title. I said that I would publish reasons later. The following are those reasons.

2    The underlying application for a determination of native on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People was filed on 5 December 2000. There was a single applicant, Mr Gordon Lansen, to whom I will refer as “the Original Applicant”. He is now deceased.

3    On 4 March 2016, David Harvey and Graham Friday (to whom I will refer as “the Replacement Applicants”), applied for an order pursuant to s 66B of the Native Title Act 1993 (Cth) (the NT Act) that they replace the Original Applicant in the proceedings. That application is supported by affidavits from Mr Harvey and Mr Friday made on 24 July 2013 but not filed in the Court until 4 March 2016. In addition, the application is supported by an affidavit from Ms Gibson at the Northern Land Council (NLC) made on 25 October 2016. Ms Gibson annexes to her affidavit signed minutes of proposed consent orders which indicate that all of the respondents other than the third respondent, Landmark Developments Pty Ltd (Landmark), consent to the proposed orders. The NLC had difficulty in obtaining consent from Landmark because it was, for a time, under external administration. However, by correspondence on 29 September 2016, the NLC sought Landmark’s consent. That consent has not been provided. Ms Gibson deposes to having been told that the director of Landmark who can give the appropriate consent will be overseas until December 2016 and, it seems, cannot give attention to the matter until then.

4    The NLC, on behalf of the Replacement Applicants, now seek the order pursuant to s 66B despite the absence of consent to that course by Landmark.

5    Section 66B of the NT Act authorises the Court to order that particular persons replace an original applicant for native title if the Court is satisfied (relevantly) that the current applicant is dead and that the replacement applicants are authorised by the claim group to make the application and to deal with matters arising in relation to it.

6    On the basis of the affidavits of Mr Harvey, Mr Friday and Ms Gibson, I am satisfied that the Original Applicant is deceased; that Mr Harvey is a member of the Mara and Yanyuwa Peoples and that Mr Friday is a member of the Yanyuwa People; that each was authorised at a meeting of the Mara, Alawa, Yanyuwa and Gurdanji People on 5 October 2012 to apply to the Court for the order now sought pursuant to s 66B of the NT Act; that that authorisation was undertaken by a decision-making process in accordance with the way in which the native title claim group traditionally has made decisions; and that it is otherwise appropriate to exercise the discretion vested by s 66B(2) to make the orders sought by the Replacement Applicants. I take into account that Landmark has had an adequate opportunity to express an attitude to the application and that, on the face of the material before the Court, it does not seem to have any significant interest in opposing the application. The proceedings must have a current applicant in order to progress and it is appropriate that those who have been authorised by the native title claim group be appointed for that purpose.

7    Accordingly, I made the following orders on 27 October 2016:

(1)    Pursuant to s 66B of the Native Title Act 1993 (Cth), David Harvey and Graham Friday (the Replacement Applicants) replace the current applicant in the proceedings;

(2)    The heading of the claim and application be amended to reflect the names of the Replacement Applicants.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:    16 December 2016