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Editors --- "Daniels for the Ngaluma People and Monadee for the Injibandi People v State of Western Australia - Case Summary" [1999] AUIndigLawRpr 30; (1999) 4(3) Australian Indigenous Law Reporter 26

Daniels for the Ngaluma People and Monadee for the Injibandi People v State of Western Australia

Federal Court of Australia (RD Nicholson J)

21 May 1999

[1999] FCA 686

Native Title – application for leave to amend claimant application - whether application of restricted kind – whether application not complying with Native Title Act 1993 (Cth) – whether the Act requires details of areas within claim boundaries not covered by application – whether class or formula approach satisfies act where validity remains to be determined.

The applicants were native title claimants who brought a notice of motion to amend their application pursuant to O13 r(2)(1) and O 78 r 7 of the Federal Court Rules. The application as originally framed excluded 'those areas, if any, within the claim boundaries where native title has been extinguished as a matter of law'. The amendment sought to exclude areas within the application by reference to various categories of past acts, intermediate period acts defined in the Native Title Act 1993 (Cth) ('the Act').

The respondent opposed the grant of leave to amend the application on the basis that the application as amended would still fail to comply with s 62(2)(a)(ii) of the Act because the internal boundaries of the application would still not be properly defined. The applicant contended that the requirements of s 62 would be satisfied by adopting a class or formula approach.

Held:

There is an evident difficulty in reconciling the requirements of the Act for detail in s 62, the registration test in s 190B and the state of knowledge of the parties at different stages of the application. The provisions are intended to operate as follows:

1. Parliament has made clear that s 62 requires claimant applications to be approached with attention to 'detail'. This requires, among other things, that such applications must, in compliance with para 62(2)(a)(i) and (ii), contain information identifying 'the area covered by the application' and 'any areas within those boundaries that are not covered by the application'.

2. These requirements are to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment to an application is made. Consequently, a class or formula approach could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances.

3. Section 62(2)(a)(ii) requires applicants to turn their mind to the issue of which areas are not covered by the application. In identifying such areas it will necessarily fall to the claimants to form a view on whether an instrument is of a type which would give rise to a grant or vesting of an interest falling within the description of ss 61A(2)(ii) or 61A(2)(iii) and hence of ss 23B or 23F.

4. Where applicants identify limited parcels of land within the external boundaries which are not claimed they would be required to identify those excluded areas.

5. Where the claimants are of the view that grants covering areas to which s 61A applies are valid interests, they would be bound to exclude the areas covered by those interests from the application.

6. Where validity of an interest over an area is to be contested in the determination of the application, para 62(2)(a)(ii) must nevertheless require identification of the areas excluded from the application in the event of validity being established. If that were not the case a strike out application could be brought under s 84C of the Act in respect of alleged non-compliance with s 61A. At the minimum a class or formula description of such exclusions dependent on determination of validity would be required.

7. If an applicant chose to use a class or formula description, he or she could only do so in the knowledge that he or she could be called upon to answer a strike out application pursuant to s 84C of the Act. A class or formula description of the type proposed would only be appropriate where the uncertainty of validity (for example) was clearly arguable.

8. The class or formula approach proposed by the applicants to definition of exclusion does, if otherwise appropriate, give certainty for respondent interest holders in that they know their interest is subject to claim unless specifically excluded.

The application to amend was stood over to permit the applicants to consider whether the class descriptions proposed met the requirements of the Act.