Atkins v State of Western Australia

Federal Court of Australia|2013-08-05|Before: McKerracher J

INTRODUCTION 1 On 23 July 2013 I granted leave for an application for determination of native title to be amended. I also made ancillary orders discharging the Gingirana applicant's requirement to serve the respondents other than the State of Western Australia (the State) and requiring the Gingirana applicant to provide a copy of the amended application to any respondent upon request. The most significant amendments sought in the Minute of Proposed Amended Native Title Determination Application (amendment application) filed on 7 June 2013 were to vary the description of the native title claim group. 2 Most respondent parties consented to the Gingirana applicant's amendment application, including the State, Telstra Corporation Ltd, Yamataji Marlpa Aboriginal Corporation, pastoralists and graziers, Plutonic Gold Pty Ltd and Plutonic Operations Ltd. 3 Three unrepresented respondents did not respond to the consent minute circulated by the Gingirana applicant's legal representatives, namely, Alinta Dewap Pty Ltd, Southern Cross Pipelines (NPL) Australia Pty Ltd and Southern Cross Pipelines Australia Pty Ltd. Various efforts were made by the Gingirana applicant's legal representatives to contact these respondents in order to clarify their position with respect to the amendment application. A Registrar of the Court also contacted the respondents by email on 15 July 2013 and 23 July 2013 requesting the respondents to provide a response to the circulated consent minutes. The Court received no response.

CONSIDERATION 13 Section 251B of the Native Title Act 1993 (Cth) provides that all the persons in a native title claim group authorise a person or persons to make a native title determination application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under traditional laws and customs of the claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to or adopted by persons in the native title claim group. 14 In Lovett on behalf of the Gunditjmara People v State of Victoria (No 3) [2011] FCA 867, in considering an uncontested application to amend an application for a determination of native title and specifically an amendment of the claim group description, North J said (at [9]): It is not entirely clear whether the provisions of s 251B apply in these circumstances. However, the better view is that they do. In any event, as a matter of caution, the full procedure as required by s 251B was followed by the Gunditjmara people and the Eastern Maar people. I respectfully agree with his Honour's reasoning. 15 Section 251B(a) applies in the present case. Mr O'Dell deposes that based on his knowledge and experience as the legal representative for the Gingirana applicant for a number of years, the resolution to amend the claim group description was carried in accordance with the traditional laws and customs of the Gingirana claim group. In particular the proposed amendments were discussed, all views were canvassed, and ultimately consensus was reached amongst all of those members of the claim group present at the meeting to amend the Gingirana application and, in particular, the claim group description. Mr O'Dell deposes that same process was also followed at the meeting held in Wiluna on 21 May 2012.

CONCLUSION 16 The respondents either consented to, or did not actively oppose, the amendment application. Based on the evidence and reasons outlined above, leave was granted to amend the application in the terms sought by the Gingirana applicant. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Native Title Act 1993(Cth)s 251B(a)

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