Drury v State of Western Australia

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 Title Act 1993 (Cth) prior to the amendments to the Act, which came into force on 30 September 1998. 3 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. 4 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. 5 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. 6 The orders sought on behalf of the applicants are as follows: "1. This application WAG6136 of 1998 be re-amended in the form of the Minute of Proposed Amended Native Title Determination Claimant Application filed herewith and that this document stand as the re-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 this 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." The question at issue between the applicants and the State in respect of the proposed amendments is whether there is a requirement for fresh supporting affidavits to be sworn by each of the applicants as though the amendment were the lodgment of a new application. It is necessary, in order to deal with this issue, to refer to the provisions of the Act.