FEDERAL COURT OF AUSTRALIA

Roberts v Northern Territory of Australia [2011] FCA 242

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to amend the application in terms of the document entitled “Further Amended Application” annexed to the affidavit of Tamara Simone Cole affirmed 13 January 2011.

2.    The name of Talbot Hood, now deceased, be removed from the names of persons constituting the applicant.

3.    The said document entitled “Further Amended Application” do stand as the further amended application and that further filing and service of the further amended application be dispensed with.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The applicants in this matter have sought two orders by motion in these proceedings. The orders sought are unopposed.

2    The first is straightforward. One person who is named as an applicant is now deceased. It is appropriate to remove his name as an applicant. That is supported by the other persons constituting the applicants, authorised under s 251B of the Native Title Act 1993 (Cth) (the NT Act) to bring this claim on behalf of the claim group: see Lennon v State of South Australia [2010] FCA 743.

3    The second is for leave to amend the application in accordance with the further amended application annexed to the supporting affidavit of Tamara Cole affirmed on 13 January 2011, and for the consequential order that the further amended application then stand as the application without further service. I propose to make those orders. I am satisfied that each of the respondents have been notified of the application, and that there is no opposition to it.

4    The purpose of these reasons for what is an uncontentious motion is to identify the nature of the amendments effected by the further amended application, and to consider their consequences having regard to ss 64 and 66A of the NT Act.

5    The amendments involve:

(1)    the insertion of a reference to the Guyanggan Nganawirdbird Group on whose behalf the application is made together with the Najig Group in the description of the applicant;

(2)    the insertion of a revised description of the native title claim group in Schedule A;

(3)    the insertion of a revised description of the native title rights and interests claimed in Schedule F;

(4)    the insertion of a revised certification of the Northern Land Council in Schedule R;

(5)    the addition of an example of traditional physical connection in Schedule M;

(6)    the replacement of references to the Yangman-Mangarrayi People with references to the Najig Group and the Guyanggan Nganawirdbird Group; and

(7)    the insertion of new contact details for the solicitor for the applicant.

6    The Court has power under s 64(1A) and (1C) of the NT Act to amend the application. The amendment does not involve any inclusion of any area of land or waters that was not covered by the original application: cf s 64(1).

7    The Registrar of the Court, by reason of the amendment of the application, must give a copy of the amended application to the Native Title Registrar: s 64(4). There is some parallel between the Native Title Registrar’s functions and responsibilities when so notified, with the functions and responsibilities when notified pursuant to s 63 of the NT Act of a new application made under s 61. In the case of notification under s 63, the Native Title Registrar under s 66 must follow the detailed notification obligations imposed by that provision, some of which are to be undertaken only after the claim registration decision under s 190A has been made. The purpose of those notification processes is discussed in Adnyamathanha No 1 Native Title Claim Group v South Australia (No 2) [2009] FCA 359 (Adnyamathanha) at [14].

8    Section 66A imposes certain notification obligations upon the Native Title Registrar when given a copy of an amended application under s 64(4). However, the notification obligations only arise if the amendment to the application results in a change to the area of land or waters covered by the original application: s 66A(1)(b) and cf s 66(2) dealing with combined applications does not apply: s 66A(1)(c). That is, there are three cumulative criteria which must exist before the Native Title Registrar must by reason of s 66A(1) undertake a further notification process: the notice of the amended application pursuant to s 64; the fact that the amended application changes the area of land or waters covered by the original application; and the fact that the amended application does not reflect the combining of the application with other applications.

9    Separately, s 66A(1A) obliges the Native Title Registrar to make certain notification if the amended application re-includes an area of land or waters in the area covered by the original application which had previously been removed from the claim area.

10    Thirdly, s 66A(2) imposes certain notification obligations on the Native Title Registrar when given an amended application which results from combining one or more other applications.

11    Each of s 66A(1), (1A) and (2) imposes different notification obligations. That is because, in respect of each category of amended application, the notice is to be given to persons potentially affected by the amended application who previously may not have perceived, or who previously may no longer have perceived, that their interests are potentially affected by the amendment. For instance, the change to the area of land or waters covered by the application, may lead to persons whose interests may previously have been affected deciding that that is no longer so. The re-inclusion of an area similarly may lead such persons, or other persons, to perceive that their interest may be affected. Since the latter type of amendment may re-extend the claim area, the notification obligation is more extensive: compare s 66A(1A)(c), (d) and (e) and s 566A(1)(d) and (3). Persons may then seek to become parties to the proceeding under s 84 of the NT Act. If the effect of an amended application is to combine applications, again because the range of persons potentially affected afresh is limited, the extent of the notification required is also limited: s 66A(2)(a) and (b).

12    Clearly, the focus of the notification requirements under s 66A(1) and (1A) is upon ensuring that a change in the area of the land or waters covered by the amended application is brought to the attention of those whose interests may be affected by the change. They are to be given the opportunity to become, or stay as, or to cease to be parties to the application. That reflects the matters discussed in Adnyamathanha above. The combination of applications may have different implications, but this is not such a case.

13    The terms of the amended application do not attract the notification obligations specified in s 66A(1), (1A) or (2). The claim area of the application has not changed. The notification of the amended application is, of course, important to ensure that the contents of the Register of Native Title Claims kept by the Native Title Registrar under ss 186 and 190, and available for inspection under s 187, is accurate: s 190(3). It is a matter for the Native Title Registrar in the first instance to determine whether to accept the amended application for registration under s 190A. That process does not itself require any notification under s 66A, although there may be a request for information from the applicant or the relevant native title representative body. That process does not impede the applicant progressing the amended application towards its resolution, including (as anticipated in this matter) towards a consent determination, and/or to the making of other orders reflecting the agreement between the parties, under s 87 of the NT Act.

Associate:

Dated:    18 March 2011