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Editors --- "Turrbal People v State of Queensland [2006] FCA 187" [2006] AUIndigLawRpr 28; (2006) 10(2) Australian Indigenous Law Reporter 55

TURRBAL PEOPLE v STATE OF QUEENSLAND

Federal Court of Australia (Spender J)

2 March 2006

[2006] FCA 187

Native title — application to amend — s64 Native Title Act 1993 (Cth) — use of the word ‘application’ — avoidance of successive proceedings

Facts:

The applicants applied for leave to amend an application made under the Native Title Act 1993 (Cth) (‘the Act’) in 1998, by an affidavit sworn by Dale Patirick Brown, a member of the claimant group, on 1 February 2006.

The applicants had filed the original application in May 1998. However, as a result of the exemptions in that application, certain reserves were excised from the claimed lands. A later motion which sought to reinstate the reserves was abandoned.

The amended application sought by the applicants relates to 68 of the 935 reserves in the original application. These reserves are further divided into subgroups 6, 6A & 6B of annexure to the application.

The Crown opposed this amendment on the basis that there was nothing to stop the applicants making a fresh claim in respect of the 68 reserves. The Crown proposed that the matter should proceed unamended in respect of the Part A matter and that a second claim in respect of the proposed new reserves should be lodged later.

Held, granting leave to amend the application:

1. For s 64(1) of the Act, the difficulty between land that is expressly excluded in the original application and what is ‘not claimed’ in the amended application can be resolved by adding the proviso that;

No area or land that was not covered by the original application is to be included in the amended claim: [8]

2. The meaning of ‘application’ in s 64(1)(a) of the Act is the application as it is at any given time, not the original application. Therefore the applicant may not rely on s 64(1)(a) to amend the present application. Instead, the application will be goverened by the Federal Court Rules, in particular O13 r2: [9]–[12].

3. The question of the amendment is then one of discretion for the Court: [13].

4. The delays considered by this amendment are not considerable and do not outweigh the benefit of avoiding multiplicity of proceedings and promoting the consolidation of overlapping claims: [17], [18]–[20].