FEDERAL COURT OF AUSTRALIA

Warrabinga-Wiradjuri #7 v Attorney General of New South Wales

[2018] FCA 1348

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to file an amended native title determination application under s 61(1) of the Native Title Act 1993 (Cth), in the form of annexure “SB-3” to the affidavit of Simon Charles Blackshield affirmed 9 July 2018, but with “fish” substituted for “sh” in Attachment E [1(b)] and “significance” substituted for “signi cance” in Attachment E [5(c)] on page 17.

2.    The Gundungurra Tribal Council Aboriginal Corporation, the Gundungurra Aboriginal Heritage Association Inc and The Gully Traditional Owners Inc be removed as parties to the proceedings.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant moves on an interlocutory application filed on 11 July 2018, supported by three affidavits affirmed by its instructing solicitor, Mr Simon Blackshield, dated 14 June 2018 ([2] and annexure SB-1), 9 July 2018 and 29 August 2018.

2    The applicant seeks the following relief:

(a)    it have leave to file an amended native title determination application under s 61(1) of the Native Title Act 1993 (Cth) (NT Act) substantially in the form attached to Mr Blackshield’s first affidavit;

(b)    the Gundungurra Tribal Council Aboriginal Corporation, the Gundungurra Aboriginal Heritage Association Inc and The Gully Traditional Owners Inc cease to be parties to the application, on the grounds that they will no longer have interests that may be affected by a determination in this proceeding; and

(c)    there be no order as to costs.

3    The applicant relied on an outline of submissions filed on 11 July 2018. The applicant explained that the only substantive change to the proposed amended application is to reduce the area covered by the application (see s 64(1A) of the NT Act), which would have the consequence of also removing the three parties specified above because their asserted interests are confined to land and waters in the area which the applicant proposes to excise from its original s 61 application.

4    The applicant has emphasised that its orders are not intended to address any question of whether the Gundungurra People hold native title rights and interests north of the northern boundary of the area which is subject to the Gundungurra Indigenous Land Use Agreement and that it is open to any such persons to apply to be joined as respondents in the proceeding under s 84 of the NT Act.

5    The applicant confirmed that it had emailed a copy of the interlocutory application and second supporting affidavit to the email address for the Gundungurra Tribal Council Aboriginal Corporation. It noted that it had not been served with any objection by that Corporation to the orders sought in the interlocutory application.

6    As to the other two organisations referred to above, the applicant provided signed proposed consent orders which indicated that both The Gully Traditional Owners Inc and the Gundungurra Aboriginal Heritage Association Inc consented to the orders sought in the interlocutory application.

7    The interlocutory application was opposed by some of the respondents. Mr Keith Kemp relied on an outline of submissions filed on 29 August 2018 as well as an affidavit affirmed by him on 27 August 2018. The core of Mr Kemp’s position seems to be an assertion that the claim group are Gundungurra People but they had assumed the identity of Warrabinga-Wiradjuri. Mr Kemp applied to have the Court make orders in terms of a draft minute of order which would require the claim group to provide evidence that it had authority inter alia to “deliver jurisdiction from [Mr Kemp’s] lands to any court” and “to hold the right of subrogation…in relation to the land claim”.

8    The interlocutory application was also opposed by Messrs John Riley and Wayne Carr. They relied on an outline of written submissions dated 28 August 2018. Those submissions stated that, while they had no objection to the excision of the proposed area, they had a concern that such excision would give rise to other problems relating to the past authorisation processes (particularly in respect of the claimed area) and other matters which, they submitted, raise serious questions concerning the validity of the proceeding in its entirety. I was assured by Mr Blackshield from the bar table that to the best of his knowledge, there was no difference in the maps depicting the claimed area in the proposed amended application when compared with the maps in the original application, apart from the excised area.

9    I am satisfied that the Court should grant the relief sought by the applicant in circumstances where s 64(1A) confers a statutory right to amend the claim: Walker v Queensland [2004] FCA 640 at [11] per Allsop J. I also consider that the proposed changes did not require further express authorisation to that previously given, relying on Champion v State of Western Australia [2009] FCA 941 at [4] to [13] per McKerracher J and also taking into account the notice which was given prior to the meeting which was held on 26 November 2016 and to the terms of resolution passed at that meeting, particularly resolution 3, copies of which are in Mr Blackshield’s third affidavit. It is evident from the Form 5 documents filed by the three relevant entities associated with the Gundungurra People that they were joined as respondents because of their interests relating to the area which the applicant now seeks to excise from its claim. As noted above, two of those bodies have consented to the proposed amendments. Although no response has been received from the Gundungurra Tribal Council Aboriginal Corporation concerning the interlocutory application, I am satisfied, based on Mr Blackshield’s third affidavit, that the Corporation was put on notice of the interlocutory application and has not indicated any opposition to it.

10    I also note that it is open to any person associated with the three entities to apply to be joined as parties to the proceeding if they so wish, notwithstanding that the entities themselves will cease to be parties.

11    As to the matters raised by Mr Kemp and Messrs Riley and Carr, they appear to relate to the substantive proceeding. I consider that such matters are best heard and determined at a later stage if the relevant respondents wish to agitate those matters then. I am not persuaded that any of the matters raised by them provides a sufficient basis for not granting the relief the applicant seeks.

12    Having regard to s 85A of the NT Act I am not satisfied that there should be an order for costs in respect of the interlocutory application. I accept the applicant’s submission that the excision of the relevant area reflects a general strategy on the applicant’s part to avoid or minimise actual and potential overlaps with neighbouring groups. It does not involve the making of any concession by the applicant. Although, as Mr Riley pointed out, there has been some delay in bringing to the Court the proposed excision of the matter, the Court also notes that the applicant raised the proposed amendment prior to the first directions hearing in the matter on 15 June 2018.

13    For these reasons, the Court will grant the relief sought by the applicant.

Associate:

Dated:    31 August 2018