Drury v Western Australia

Case [2000] FCA 132

FEDERAL COURT OF AUSTRALIA

Drury v State of Western Australia  [2000] FCA 132

NATIVE TITLE – practice and procedure – amendment of applications – whether necessary for applicants to swear fresh verifying affidavits for all classes of amendment – no such mandate under the statute save for replacement of applicants – discretion of court to direct filing of supporting affidavits.

WORDS AND PHRASES  - “claimant application”

Native Title Act 1993 (Cth) ss 62, 64, 62A, 253

Federal Court Rules O 78 r 7

Strickland v Native Title Registrar (1999) 168 ALR 242 applied

VIOLET DRURY, NOEL KELLY, MARY TULLOCK AND OTHERS v THE STATE OF WESTERN AUSTRALIA
W 6136 of 1998

FRENCH J
18 FEBRUARY 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WG6136 OF 1998

BETWEEN:

VIOLET DRURY, NOEL KELLY, MARY TULLOCK AND OTHERS
Applicants

AND:

STATE OF WESTERN AUSTRALIA
Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

18 FEBRUARY 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The application be re-amended in the form of the minute of proposed amended native title determination claimant application filed on 7 February 2000 and that document will stand as the reamended application.

2.Service of the motion and supporting documents on any person other than the State of Western Australia be dispensed with.

3.The applicants to provide a copy of the re-amended application to any respondent on request.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WG6136 OF 1998

BETWEEN:

VIOLET DRURY, NOEL KELLY, MARY TULLOCK AND OTHERS
Applicants

AND:

STATE OF WESTERN AUSTRALIA
Respondent

JUDGE:

FRENCH J

DATE:

18 FEBRUARY 2000

PLACE:

PERTH

REASONS FOR JUDGMENT ON MOTION TO AMEND APPLICATION

Introduction

  1. When a native title determination application is filed in the Federal Court under the Native Title Act 1993 (Cth) s 62 of the Act requires it to be supported by affidavits sworn by each of the applicants dealing with a number of specified matters. In this case a motion has been filed to amend an existing native title determination application by contracting the geographical area which it covers. The question has arisen whether, in such a case, the amended application should be supported by fresh verifying affidavits sworn by all the applicants in accordance with the requirements of s 62 in respect of new applications. This is a short point of statutory construction.

    Background to the Amendment Motion

  2. On 28 November 1996, an application for a native title determination was lodged by a number of applicants on behalf of the Nanda people.  The application covered an area of land and waters from the southern extremity of the Shark Bay Marine Park down to Horrocks, north of Geraldton.  Since the application was lodged and following various negotiations in relation to overlapping claims, a number of amendments have been made to the application involving the addition and substitution of named persons as applicants.  Those amendments were made under the Native…

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AGLC
Drury v Western Australia [2000] FCA 132
Case
[2000] FCA 132
Decision Date

CaseChat Overview and Summary

Drury v Western Australia concerned a dispute about the necessity of filing fresh affidavits when amending a native title determination application in the Federal Court of Australia. The case involved a native title application filed by several applicants on behalf of the Nanda people, which was subsequently amended to reflect negotiations with another native title claimant group, the Naaguja group. The applicants sought to further amend their application to reflect an agreement with the Naaguja group regarding the geographical boundaries of their respective claims. The issue before the court was whether, in the case of such an amendment, fresh verifying affidavits sworn by all applicants were required, in accordance with the statutory provisions of section 62 of the Native Title Act 1993 (Cth).

The court had to interpret the statutory language of section 62, which mandates that certain matters must be dealt with in an affidavit sworn by each applicant when a native title determination application is lodged. The question was whether this requirement applied to every amendment of an application or only to new applications. The court considered the legislative history and the purpose of the Act in determining the appropriate interpretation. Ultimately, the court found that the statutory language did not explicitly require fresh affidavits for every amendment, and the legislative intent was to ensure that the information provided in the affidavits remains current and accurate, rather than to impose an unnecessary administrative burden on applicants.

The court concluded that fresh affidavits were not required for this specific amendment, as the changes did not alter the fundamental information required by section 62. Instead, the court allowed the amendment as proposed, with the condition that the applicants provide a copy of the re-amended application to any respondent on request. This decision balanced the need for accurate and current information with the practicalities of administering native title applications, ensuring that the process remains fair and efficient.

Orders

Orders of the court

1. The application be re-amended in the form of the minute of proposed amended native title determination claimant application filed on 7 February 2000 and that document will stand as the reamended application.

2. Service of the motion and supporting documents on any person other than the State of Western Australia be dispensed with.

3. The applicants to provide a copy of the re-amended application to any respondent on request.

Note:

Background

Background to the litigation

When a native title determination application is filed in the Federal Court under the Native Title Act 1993 (Cth) s 62 of the Act requires it to be supported by affidavits sworn by each of the applicants dealing with a number of specified matters. In this case a motion has been filed to amend an existing native title determination application by contracting the geographical area which it covers. The question has arisen whether, in such a case, the amended application should be supported by fresh verifying affidavits sworn by all the applicants in accordance with the requirements of s 62 in respect of new applications. This is a short point of statutory construction.Background to the Amendment Motion On 28 November 1996, an application for a native title determination was lodged by a number of applicants on behalf of the Nanda people. The application covered an area of land and waters from the southern extremity of the Shark Bay Marine Park down to Horrocks, north of Geraldton. Since the application was lodged and following various negotiations in relation to overlapping claims, a number of amendments have been made to the application involving the addition and substitution of named persons as applicants. Those amendments were made under the Native Title Act 1993 (Cth) prior to the amendments to the Act, which came into force on 30 September 1998. On 1 April 1999, a further amendment was made to the application by order of the District Registrar operating under the provisions of the Act as amended. That amendment involved the substitution of two of the applicants. The amended application was accompanied by affidavits sworn by each of the applicants in the terms required by s 62 of the Act. The application came before the Court on 8 September 1999 for a directions hearing. At that time the directions hearing was adjourned to 9 March 2000 to enable mediation between the applicants and the respondent to proceed. In the meantime, on 7 February 2000, a notice of motion to further amend the application was filed and made returnable on 16 February before me. The Registrar referred the matter to a judge because a question has arisen as to whether s 62 of the Act has the effect that it is necessary, in every case of an amendment of an application, to file fresh verifying affidavits sworn by each of the applicants. The background to the proposed amendment is set out in an affidavit in support of the motion sworn by Mr Ritter, the solicitor employed by the Yamatji Land and Sea Council who is representing the applicants. On 13 July the applicants reached agreement with another overlapping native title claimant group, the Naaguja group, which has lodged application WAG6194/98. The substance of the agreement is that the southern boundary of the Nanda claim be withdrawn to the north and that the northern boundary of the Naaguja claim be withdrawn to the south. A new combined application will be lodged to cover the vacated area between the two claims. By orders made on 29 September 1999, the Naaguja native title application boundary was contracted to the south pursuant to the agreement. The Nanda applicants now wish to amend their application to give effect to their part of the agreement. Accordingly, they wish to substitute new Schedules B and C of the application for the former Schedules B and C so that its external boundaries reflect the agreement. The proposed substituted Schedules comprise the textual description of the external boundary and a map of the boundary and were exhibited to the affidavit. Schedule H to the application is also proposed for amendment as overlaps affecting the Nanda claim have changed since its previous amendment. Schedule I is also amended to make reference to notices of proposed future acts issued under s 29 since the application was previously amended. The changes to Schedules B, C, H and I are the only amendments.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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