Kogolo v State of Western Australia
[2000] FCA 1036
•3 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
Kogolo v State of Western Australia [2000] FCA 1036
NATIVE TITLE - application under s 61 Native Title Act 1993 (Cth) for determination of native title – application under s 64(1) of Native Title Act 1993 (sCth) to re-amend application to re-include in claim area land included in application when lodged but deleted by subsequent amendment - meaning of “original application” in s 64(1).
Native Title Act 1993 (Cth) s 61, 64, 64(1), 66A, 66A(1), 190A
ANNETTE KOGOLO & ORS v STATE OF WESTERN AUSTRALIA & ORS
WAG 6077 OF 1998LEE J
3 AUGUST 2000
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 6077 OF 1998
BETWEEN:
ANNETTE KOGOLO, BUTCHER WISE, CHARLIE NUNDUN, HARRY YUNGABUN, HITLER PAMBA, HUGHIE BENT, IVAN McPHEE, JIMMY NERRIMA, JIMMY PIKE, JINNY BENT, JOE BROWN, LUCY CUBBY, MONA CHUGUNA, PERCY BULAGARDIE, PETER CLANCY, PETER SKIPPER, RONNIE JIMBIDIE, STALIN WODIGAR, TOMMY MAY, WARFORD BUDJIMAN, WILFRED STEELE
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA
FIRST RESPONDENTSHIRE OF DERBY/WEST KIMBERLEY
SECOND RESPONDENTSNOWY JUDAMIA, BILLY THOMAS, FRANK FRENCH, BILLY DUNN
THE MARTU PEOPLE
THIRD RESPONDENTSNERDLIHC COMPANY INC
PASMINCO AUSTRALIA LTD
FOURTH RESPONDENTSJUDGE:
LEE J
DATE OF ORDER:
3 AUGUST 2000
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be re-amended in terms of the amended Native Title Determination Claimant Application filed on 21 June 2000 and that this document stand as the amended application.
2.Any requirement to re-swear the affidavits of the respective applicants verifying the proposed amended application be dispensed with.
3.Service of the motion and supporting documents on any person other than the State of Western Australia be dispensed with.
4.The applicants 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
WAG 6077 OF 1998
BETWEEN:
ANNETTE KOGOLO, BUTCHER WISE, CHARLIE NUNDUN, HARRY YUNGABUN, HITLER PAMBA, HUGHIE BENT, IVAN McPHEE, JIMMY NERRIMA, JIMMY PIKE, JINNY BENT, JOE BROWN, LUCY CUBBY, MONA CHUGUNA, PERCY BULAGARDIE, PETER CLANCY, PETER SKIPPER, RONNIE JIMBIDIE, STALIN WODIGAR, TOMMY MAY, WARFORD BUDJIMAN, WILFRED STEELE
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA
FIRST RESPONDENTSHIRE OF DERBY/WEST KIMBERLEY
SECOND RESPONDENTSNOWY JUDAMIA, BILLY THOMAS, FRANK FRENCH, BILLY DUNN
THE MARTU PEOPLE
THIRD RESPONDENTSNERDLIHC COMPANY INC
PASMINCO AUSTRALIA LTD
FOURTH RESPONDENTS
JUDGE:
LEE J
DATE:
3 AUGUST 2000
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicants apply to re-amend an application made under s 61 of the Native Title Act1993 (Cth) (“NTA”) for a determination of native title.
First, the applicants seek to correct an error in the description of the native title claim group. That amendment is not opposed. Second, the applicants seek to enlarge the area in respect of which determination of native title is sought. That amendment is opposed by the first respondent (“the State”).
The application was lodged with the National Native Title Tribunal (“the Tribunal”) in March 1996 and accepted by the Tribunal in May 1996. The application, known as the Ngurrara claim, applies to an area of vacant Crown land in the general vicinity of the Great Sandy Desert, south of the pastoral leases of the Kimberley region and north of the Percival Lakes.
At the time the Ngurrara claim was lodged the applicants acknowledged that at the southern boundary of the claim area there was an area, known as Warla, in respect of which customary rights for access to, and use of that land, were shared with the Martu indigenous people.
In June 1996 the Tribunal accepted an application for determination of native title lodged by the Martu native title claim group in respect of land adjacent to the Ngurrara claim and overlapping the Ngurrara claim as to the Warla area.
On 30 September 1998, when substantial amendments to the NTA came into force, (“the amended NTA”) both applications were deemed to have been filed in the Federal Court. The Ngurrara claim, having been lodged before 27 June 1996, was not required to be re-examined for compliance with the new registration tests introduced by s 190A of the amended NTA. On 30 March 1999 the Martu claim was re-registered by the Tribunal under s 190A. The Warla area remained part of that claim.
Later in 1999 the Ngurrara and Martu claimants met to discuss their common interest in the Warla area. As then advised as to the operation of the amended NTA, and in particular as to its effect on “right to negotiate” provisions as they existed before amendment, the several claimants determined that application would be made by the Ngurrara claimants to amend their application to excise the Warla area from that claim and for the Martu application to be amended to include Ngurrara claimants in the Martu native title claim group in respect of the Warla area. The Ngurrara claim was amended accordingly in November 1999. The Martu claim has not been amended. The Ngurrara claimants have been advised to restore the Warla land to the area of the Ngurrara claim.
Under s 64 of the amended NTA an application may be amended at any time, inter alia, to reduce the area of land covered by the application. Under ss 64(1) and 64(2) an amendment must not result in the inclusion of land not covered by the “original application” unless the amendment combines the application with another claimant application to include in the claim area land covered by the other application.
The ordinary meaning of “original application” would be a source proceeding or initiating process. On its face, therefore, s 64 permits the order sought by the applicants. The State, however, contends that “original application” as used in s 64(1) does not mean the application in its original form but the application as it stands before amendment.
No support for that submission is found in the terms of s 64 and the argument advanced by the State rests upon a perceived lacuna that, it is suggested, would arise in respect of the giving of notice under s 66A if the claim area of an application was reduced by amendment of the application and the excised area restored by further amendment.
Section 66A(1) provides as follows:
“66A(1) Native Title Registrar to notify parties etc If:
(a)the Native Title Registrar is given a copy of an amended application under section 64; and
(b)the amendment concerned results in a change to the area of land or waters covered by the original application; and
(c)subsection (2) does not apply;
the Registrar must:
(d)give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and
(e)if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:
(i)give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and
(ii)notify the public in the determined way of the amended application.”
The State submitted that a person who ceased to be a party after an application was amended to remove from the claim area land in which that party had an interest, would not receive notice under s 66A(1) of the further amendment to the application to restore that land to the claim area unless the words “original application” meant the application as it stood immediately before that further amendment.
However, s 66A does not confine the administrative functions of the Tribunal. If it appears to the Tribunal, upon presentation to it of an amended application, that circumstances require re-notification of the application to a person who was formerly a party to the application, the Tribunal may act accordingly. Therefore, there is nothing in s 66A that requires a meaning other than the ordinary meaning to be applied to the words “original application” as used in s 64(1).
Furthermore, if the draftsperson intended that the words “original application” in s 66A(1) meant the application as it stood before it became the amended application referred to in the subsection, qualification of “application” by “original” was unnecessary. The intention would have been effected by using “application” without qualification. Therefore, the draftsperson must have intended that the object against which change was to be measured was a constant, namely the application in its original form, not the application in the form it stood before the most recent amendment was effected.
The State could not identify what the purpose would be of the construction for which the State contended other than “facilitation of certainty”. That purpose, however, would be served in the same degree by applying the ordinary meaning of the words, in that there would be certainty that a claim area could not be enlarged beyond the area defined in the original application unless enlargement of the claim area was effected by a combination of applications. Indeed, on the State’s submission proliferation of proceedings would result. In the instant case the applicants would be required to commence another application in respect of the Warla area and apply to combine that application with the existing application. That construction does not appear to be one which “facilitates certainty”.
If the draftsperson had intended that s 64(1) not permit an amendment to an application to increase the claim area, that intention could have been effected by stating in simple terms that an amendment to an application must not result in the inclusion of any additional area of land or water. Application of the ordinary meaning of the words “original application” to the construction of s 64(1) does not produce an absurd result and accordingly it is the proper construction.
Orders will be made in terms of the motion.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 3 August 2000
Counsel for the Applicants: P J Castley Solicitor for the Applicants: G M Irving Counsel for the First, Second, Third and Fourth Respondents: C R Cross (By leave)
Solicitor for the First, Second, Third and Fourth Respondents: Crown Solicitor for the State of Western Australia
Date of Hearing: 14 July 2000 Date of Judgment: 3 August 2000
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