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 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. Statutory Framework 7 Part 3 of the Native Title Act deals with applications and Division 1 of Part 3 with applications to the Federal Court for native title determinations and for compensation. Section 61(1) sets out, in tabular form, applications that can be made under Division 1 to the Federal Court and the persons who may make each of those applications. The class relevant for present purposes is that set out first in the table, namely: "(1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or…" Section 61(2) provides that in the case of a native title determination application made by persons authorised to make the application by a native title claim group, those persons are jointly "the applicant". Section 61(5) requires: "(5) An application must: (a) be in the prescribed form; (b) be filed in the Federal Court; and (c) contain such information in relation to the matters sought to be determined as is prescribed; and (d) be accompanied by any prescribed documents and any prescribed fee." Section 61A imposes restrictions on the making of certain applications which are not relevant for present purposes. Section 62 sets out the information to accompany or be included in native title determination applications. Relevantly for present purposes, s 62(1) provides: "62(1) A claimant application (see section 253): (a) must be accompanied by an affidavit sworn by the applicant: (i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and (ii) that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and (iii) that the applicant believes that all of the statements made in the application are true; and (iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv);" Paragraphs (b) and (c) refer to further details to be contained in the application itself. The question in the present case is whether the requirements for the swearing of affidavits by the applicant (which includes applicants) applies to amended applications. It is necessary therefore to look at the provisions of the Act which relate to amendment of applications. Section 64 deals with that topic. It is convenient to set out the whole of the terms of s 64 which provides: "(1A) An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.) (1) an amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application. (2) However, if: (a) the application is a claimant application (see section 253); and (b) the amendment combines the application with another claimant application or claimant applications; subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications. (3) In the case of a claimant application, the fact that the Registrar is, under section 190A, considering the claim made in the application does not prevent amendment of the application. (4) If an application is amended, the Registrar of the Federal Court must, as soon as practicable, give a copy of the amended application to the Native Title Registrar. (5) If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant: (a) that the new applicant is authorised by the other persons included in the native title claim group, or the compensation claim group, to deal with matters arising in relation to the application; and (b) stating the basis on which the new applicant is authorised as mentioned in paragraph (a)." When an application is amended the Native Title Registrar is to be given a copy of the amended application by virtue of s 64(4) and is required to give notice of the amended application in accordance with the requirements of s 66A. 8 The rules of court make limited provision for the amendment of native title determination applications. This is dealt with in O 78 r 7 which provides: "7(1) A person applying under section 64 or 66B of the Native Title Act to amend a main application must file 2 copies of the application and each map and other accompanying document with the Court. (2) As soon as reasonably practicable after an application is filed, the Registrar must forward 1 copy of the application and each map and accompanying document to the Native Title Registrar. (3) The Court may give the directions and make the orders it considers appropriate, including (but without limiting the generality of this power) an order that claimant applications be combined." Whether Fresh Affidavits are Required for Each Amendment 9 The State of Western Australia submits that when an application is amended and however an application is amended, the effect of s 62(1) is that fresh affidavits must be sworn by each of the applicants covering the matters set out in (i) to (v) of paragraph (a) of that subsection. 10 Section 64 makes specific provision, in subsection (5) for an affidavit to be filed where there is a new applicant replacing an existing applicant. The new affidavit is limited to the issue of authorisation. The new applicant is not required to swear to the other matters set out in paragraph (a) of s 62(1). That specific requirement is understandable given the importance of authorisation of applicants by the native title claim group as underpinning the legitimacy of the application – Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260. The express provision in s 64(5) and its limited terms and application militate powerfully against the State's contention of a superadded obligation in every case of amendment to file an affidavit by the applicants verifying all of the matters set out in s 62(1)(a). There is no express requirement of the kind to which the State contends and in the face of the provisions of s 64 and the real practical difficulty that it would bring to the process of amendment, there is no proper basis for implying it. 11 The State referred to the definition of "claimant application" in s 253 and the reference to amended applications included therein. The definition of "claimant application" in s 253 is in the following terms: "claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended." As can be seen the extension of that definition to applications which have been amended is qualified by the words "unless the contrary intention appears". Section 62, insofar as it deals with accompanying affidavits in subs 62(1), is dealing with the position at the point of filing of the application. It is not, in my opinion, intended to cover amendment of applications. The other requirements of s 62(1) in pars (b) and (c) go to the content of the application which would apply as much to an amended application as to the original. Section 62 does not, either expressly or by implication, convey a requirement that fresh affidavits have to be filed on the occasion of every amendment. 12 The authorisation which satisfies the requirements of s 62 in respect of a new application is intended to cover the ability of the applicants to deal with matters arising in relation to the application. Section 62A expressly provides that in the case of a claimant application, the applicant may deal with all matters arising under the Native Title Act in relation to the application. In my opinion such matters include the amendment of the application from time to time. 13 Where an application is to be amended simply by contraction of the geographical area covered by it pursuant to an agreement, that is a matter in which the filing of fresh affidavits by the same applicants covering the matters in (i) to (v) would be a pointless bureaucratic imposition. The amendment proposed in this case does not require the filing of fresh affidavits by the applicants. 14 The absence of any statutory obligation to file fresh s 62(1)(a) affidavits in support of any amended application does not mean that the Court may not direct affidavit evidence in support of amendments to be filed in an appropriate case. Thus an amendment which involves the addition of applicants, while not covered by the requirements of s 64(5), might well attract a direction for the filing of affidavits going to the authorisation of the additional applicants. Where two applications are combined and they do not have precisely the same applicants, it may be thought appropriate to file affidavits by all applicants addressing the matters required to be addressed under s 62(1)(a) for the area of the combined application. These examples are not proposed as necessary conditions of the classes of amendment mentioned. They are ultimately within the discretion of the Court. However, advisors to applicants seeking amendment of applications should consider these matters in determining what material to submit in support of the proposed amendment. 15 For present purposes it is sufficient to say that there is no requirement to file fresh affidavits by the respective applicants and I will make orders accordingly. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 18 February 2000 Counsel for the Applicant: Mr D Ritter Solicitor for the Applicant: D Ritter Counsel for the Respondent: Mr P Bishop Solicitor for the Respondent: State Crown Solicitor Date of Hearing: 16 February 2000 Date of Judgment: 18 February 2000