Donnelly v Minister for Land and Water Conservation

[1999] FCA 1581

FEDERAL COURT OF AUSTRALIA

Donnelly v Minister for Land & Water Conservation [1999] FCA 1581

No question of principle

ANDREW DONNELLY v THE MINISTER FOR LAND & WATER CONSERVATION & ORS

NG 6073/98

HELY J

15 NOVEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6073 OF 1998

BETWEEN:

ANDREW DONNELLY
Applicant

AND:

THE MINISTER FOR LAND & WATER CONSERVATION
First Respondent

THE REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL
Second Respondent

ERIC WALKER
Third Respondent

JUDGE:	HELY J
DATE:	15 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 28 July 1997 an application was made to the Registrar of the Native Title Tribunal by persons described as “The Wahlabul” people, claiming to hold native title over an area of land in the general vicinity of Tenterfield.  Excluded from the area covered by the application is:

   “land subject to freehold grants, except such grants as crown freehold, grants made for the benefit of Aboriginal people and any other land not yet identified where native title has been validly extinguished.”

2. At the commencement of the Native Title Amendment Act 1998 (effectively 30 September 1998) (the “New Act”) the application had been accepted, but the Registrar had not started giving notification. As a result of the application and transitional provisions of the New Act [Table A, Schedule 5, Part 3, Item 6] the application is taken to have been made to the Federal Court under the relevant provisions of the New Act [Table A, Schedule 5, Part 9, Item 36].

3. The application was made after 27 June 1996, hence the Registrar is required [Table A, Schedule 5, Part 4, Item 11(5)] to consider the claim under s 190A of the New Act as soon as reasonably practicable.  Section 84C of the New Act applies to the application but the references in s 84C to s 61 or 62 are to be taken as references to s 61 or s 62 of the old Act [Table A, Schedule 5, Part 5, Item 21].

4. I have before me a motion in which the claimants seek leave to file an amended Native Title Determination Application.  A draft of the proposed amended application is Exhibit “A” on the motion.  The amendment is opposed by the Minister on the ground that the proposed amended application does not comply with s 62(1)(b) and s 62(2)(a)(ii) of the Native Title Act 1993 in that it does not contain information that enables any areas within the boundaries of the area covered by the application, that are not covered by the application, to be identified.

5. Schedule B of the amended application identifies the area covered by the application and contains a description of its external boundaries.  Paras (c), (d), (e) and (f) of Schedule B are as follows:

   “(c)For the purposes of the registration test the applicants do not claim any of the tenures listed in section 23B of the Native Title Act 1993 or those Category A Past Acts under sections 228 and 229 and Category A Intermediate Acts under sections 232A and 232B of Native Title Act 1993.

   (d)For the purposes of the registration test the applicants do not claim exclusive possession in relation to any areas where a previous non exclusive possession act as defined in section 23F of the Native Title Act 1993 may have occurred.

   (e)For the purposes of the registration test the applicants do not claim other areas over which native title has otherwise been extinguished under the Native Title Act.

   (f)The Native Title Group represented by the applicants make no admissions beyond that which is required for the registration test to any extinguishment or impairment of native title in relation to any of the tenures listed in (c), (d) or (e) above.”

6. The Minister’s complaint is not that the internal areas intended to be excluded from the application are identified by a class or formula approach (as to which see Daniels for the Ngaluma People and Monadee for the Injibandi People v State of Western Australia [1999] FCA 686). Rather the complaint is that the words “for the purposes of the registration test” are used as a qualification of the statements that certain lands are not claimed. That suggests that for all other purposes the identified internal areas are covered by the application.

7. A Native Title Determination Application is an application to the Federal Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no approved determination of native title (s 13, s 61).  A claimant application (see s 253; the present applications are claimant applications) must contain information, whether by physical description or otherwise, that enables the boundaries of any internal areas that are not covered by the application to be identified (s 62(1)(b); s 62(2)(a)(ii)).  Section 61A imposes some restrictions on the making of claimant applications.  Paras (c), (d) and (e) of Schedule B to the proposed amended application appear to be designed to accommodate those restrictions.

8. The criteria for registration of a claim are in s 190B and s 190C.  If those criteria are not satisfied the Registrar must not accept the claim for registration.  Included in the criteria are that the application complies with s 61A (s 190B(8)) and that the application contains the information required by s 61 and s 62 (s 190C(2)).

9. In my opinion s 62(2)(a)(ii) requires a claimant application to contain an unequivocal specification of whether there are any areas within the external boundaries of the land claimed that are not covered by the application, and sufficient information to enable the identification of the excluded parcels.  Internal areas are either covered by the application or they are not.  It is not consistent with the statutory scheme that areas should be excluded “for the purposes of the registration test” only.  It is the application to the Federal Court for a determination of native title to areas which is to be subjected to the registration test.  It would be inconsistent with that scheme for an application to be so drafted that the areas the subject of the application automatically changed after, and in consequence of, the application of the registration test.

10. The claimants relied upon the definition of claimant application in s 253, and asserted that the proposed amended application is in the form that the proposed native title claim group had authorised to be made.  In my view that does not meet the Minister’s objection.

11. Accordingly, the proposed amended application does not comply with s 62(1)(b) and s 62(2)(a).  There may also be a failure to comply with s 61A: Strickland v Western Australia [1999] FCA 221 suggests that if a proposed amended application would not be in conformity with the Act then the amendment should not be allowed.

12. I decline to grant leave for the filing of an amended Native Title Determination Application in the form of Exhibit A.  As the only objection taken to the proposed amended application was the inclusion of the words “for the purposes of the registration test” in (c), (d) and (e) of Schedule B, and para (f), I would be prepared to grant the leave sought if those words were deleted from paras (c), (d) and (e) and if para (f) was deleted.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             15 November 1999

The applicants were represented by Mr A Oshlack
Counsel for the 3rd Respondent:	A McLean
Solicitor for the 1st Respondent:	Crown Solicitor’s Office (NSW)
Solicitor for the 2nd Respondent:	Australian Government Solicitor
Date of Hearing:	4 November 1999
Date of Judgment:	15 November 1999