FEDERAL COURT OF AUSTRALIA

Lovett on behalf of the Gunditjmara People v State of Victoria (No 4) [2011] FCA 931

THE COURT ORDERS THAT:

1.    The Native Title Determination made in relation to this application on 30 March 2007 be amended by inserting into Schedules 2 and 3 to the determination Area 2057 to Area 2073 as set out in the document attached to this Order and marked “A”.

2.    The document inserted into Schedules 2 and 3 of the Determination note that the additions were made pursuant to these orders.

3.    The Native Title Registrar is directed to include in the National Native Title Register the details of the determination as amended in accordance with Order 1.

4.    The Native Title Registrar is directed to notify the relevant land titles office of the details of the determination as amended in accordance with Order 1.

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.

“A”

THE COURT ORDERS THAT:

1.    The Native Title Determination made in relation to this application on 30 March 2007 be amended by inserting into Schedules 2 and 3 to the determination Area 2057 to Area 2073 as set out in the document attached to this Order and marked “B”.

2.    The document inserted into Schedules 2 and 3 of the Determination note that the additions were made pursuant to these orders.

3.    The Native Title Registrar is directed to include in the National Native Title Register the details of the determination as amended in accordance with Order 1.

4.    The Native Title Registrar is directed to notify the relevant land titles office of the details of the determination as amended in accordance with Order 1.

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    On 30 August 1996, an application was filed on behalf of the Gunditjmara people for a determination of native title in relation to land and waters in South West Victoria (VID6004/1998). On 9 June 2006, a further application was filed in relation to parts of the country which had not been included in the original application (VID655/2006). On 18 January 2007, the Court made orders dividing the proceedings into two parts. These orders were made so the Court could deal with the first part (Part A) ahead of the second part (Part B), as it became evident there may be additional people with rights and interests in the Part B area together with the Gunditjmara people. On 30 March 2007, the proceeding relating to the land and waters comprised within the Part A area was determined by consent under s 87 of the Native Title Act 1993 (Cth) (the Act) (Part A determination).

2    On 15 July 2011, the Gunditjmara people filed notices of motion in each of their applications for a determination of native title seeking to correct certain errors in the description of the land and waters included in the Part A determination. The motions are brought under O 35 r 7(2)(f) and (3) of the Federal Court Rules, which provide:

(2)    The Court may vary or set aside a judgment or order after the order has been entered where:

…

(f)    the party in whose favour the order was made consents.

(3)    A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.

3    The Gunditjmara people seek to amend the Part A determination by adding 11 parcels of land to the second and third schedules of the Part A determination. The second schedule lists those parcels of land in which native title exists. The third schedule lists those parcels of land in which native title does not exist. A description of each of the parcels of land comprised in the Part A determination is contained in the Determination Area Table (DAT). The DAT indicates in respect of each parcel of land whether it falls within Schedule 2 or Schedule 3, or partly in both.

ACCCIDENTAL SLIP OR OMISSION UNDER O 35 r 7(3)

4    The motions in both applications are brought under O 35 r 7(3) because a mistake was made in the Part A determination order as a result of an accidental omission. An omission or mistake made by the legal representatives of a party falls within the ambit of O 35 r 7(3). In an affidavit sworn on 18 July 2011, Ms Maria Scalzo, the managing principal solicitor employed by the Victorian Government’s Solicitor’s Office, which represents the State of Victoria, explained how the 11 parcels of land sought to be included in the Part A determination were accidentally omitted by the legal representatives of the Gunditjmara people and the State of Victoria at the time that determination was made. All of the parcels are located on or near the border of the Part A and Part B area. The errors are therefore not surprising. The affidavit explains that 4 of the parcels are located wholly within the boundary of the Part A area, but were incorrectly listed as falling within the Part B area. It then explains that 7 of the parcels are located partly within the Part A area and partly within the Part B area. These 7 parcels were correctly listed as falling within the Part B area, but were accidentally omitted from the Part A area list.

VARIATION BY CONSENT UNDER O 35 r (7)(2)(f)

5    The motions in both applications are also brought under O 35 r 7(2)(f), which requires the consent of the party in whose favour the Part A determination was made. Ms Scalzo’s affidavit provided evidence regarding the consent of any persons holding an interest in the 11 omitted parcels of land. In particular, the affidavit stated that the Department of Sustainability and Environment (DSE) and the Department of Primary Industries (DPI) conducted searches of the parcels of land under their administration to identify any current interest holders in relation to the 11 omitted parcels of land. The DSE identified 8 such interests held by different interest holders. The DPI identified one interest held by a single interest holder. Consequently there are 9 DSE and DPI issued interests existing over the 11 omitted parcels in the Part A determination.

6    Between 1 and 4 July 2011, the State of Victoria sent letters to the 9 identified interest holders indicating that it proposed to file an application to amend the Part A determination to insert the omitted parcels, and advising the interest holders of the scheduled hearing date. The evidence establishes that responses were received from a number of the interest holders, and that none of the interest holders raised any objection to the proposed changes or indicated a desire to be involved in the hearing of the application. Thus, the requirement of O 35 r 7(2)(f) is satisfied as the party in whose favour the determination was made, the Gunditjmara people in both applications, consents to the variation.

VARIATION UNDER S 13(1)(b) OF THE ACT

7    A question arises whether the appropriate procedure to be adopted for variation of the Part A determination is the procedure under s 13(1)(b) of the Act, which allows the Court to revoke or vary an approved determination of native title on the grounds set out in s 13(5) of the Act. The proposed variations to the Part A determination would fall within s 13(5)(b) of the Act because the interests of justice would demand that the Part A determination be varied to include the omitted 11 parcels. However, if the s 13 procedure is invoked, the notification provisions in s 61, s 63 and s 66 of the Act would apply. At the time when the applications for a determination of native title were made there were numerous respondents. Consequently, the notification process under s 13 would be more onerous than if O 35 r 7 of the Federal Court Rules were relied upon.

8    It is open to the Court to make orders amending the Part A determination under either s 13 of the Act or O 35 r 7 of the Federal Court Rules. The choice between the two will depend upon the circumstances in which the application is made. The question which needs to be addressed by the Court is whether the legislature intended that the fulsome notification required by the Act be provided in circumstances such as the present, or whether the procedure under O 35 r 7(2)(f) and (3) would be regarded as appropriate in the circumstances.

9    Given the nature of the amendments sought in the present case, and the consent of both the applicants and the parties whose interests might be affected, no useful purpose would be served by requiring the full notification process under ss 13, 61, 63, and 66 of the Act to be followed.

CONCLUSION

10    Thus, the order of the Court in each of the applications will be made under O 35 r 7(2)(f) and (3) of the Federal Court Rules, in the terms of the motion to amend the Part A determination by adding references in the DAT to the 11 omitted parcels of land and their status under schedule 2 or schedule 3. The form of amendment appended to the notices of motion should, when inserted into the DAT, bear the heading that the variations were made pursuant to the order of the Court made today.

Associate:

Dated:    16 August 2011

List of Respondent Parties

VID 6004 of 1998

Interest Group 1. Government Interests – State of Victoria

State of Victoria

Interest Group 3. Commonwealth of Australia

Commonwealth of Australia

Interest Group 11. Victorian Commercial Fishing Licence

Abdiva Investments Pty Ltd

Christopher Wayne Carson

Tony Phillip Crapper

Rodney Ernest Crowther

Double Eight Golden Eels' (Australia) Pty Ltd

Eels Australis Pty Ltd

Gregory William Hollis

Dean Anthony Humphries

David Malcolm and Elizabeth Ann Johnston

Brampton and Jacqueline Linda Le Page

Andrew Levings

LJ & SA Plummer Fishing Pty Ltd

Roderick McDonald

Alan and Tanya Moncrieff

Steven James Nathan

Glen Edward Plummer

Phillip A Plummer

Peter R Price

Graham Richard Quarrell

Peter William Sandow

Richard John Smith

Murray Edward Thiele

Bert Davey Tober

Trymore Investments Pty Ltd

Interest Group 22. Public Access 2

Powercor Australia Limited

Interest Group 24. Telecommunication

Telstra Corporation Limited

List of Respondent Parites

VID 655 of 2006

Interest Group 1. Government Interests – State of Victoria

State of Victoria

Interest Group 3. Commonwealth of Australia

Commonwealth of Australia

Interest Group 11. Victorian Commercial Fishing Licence

Abdiva Investments Pty Ltd

LJ & SA Plummer Fishing Pty Ltd

Glen Edward Plummer

Phillip Plummer

Trymore Investments

88 Golden Eels (Aust) Pty Ltd

Western Victorian Eel Growers Group Pty Ltd

Peter Sandow

David Malcolm and Elizabeth Ann Johnston

Christopher Wayne Carson

Rodney Ernest Crowther

DA & JE Humphries

Murray Edward Thiele

Kenneth John Osborne

Roderick McDonand

Interest Group 22. Public Access 2

Powercor Australia Limited

Interest Group 24. Telecommunication

Telstra Corporation Limited