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Australian Indigenous Law Reporter |
Court and Tribunal Decisions – Australia
Federal Court of Australia (Lindgren J)
19 December 2000
Native title — order to strike out native title claim — insufficient identification of rights and interests — inadequate identification of the area subject of the claim — failure to amend native title application within reasonable time
A motion was made to the Federal Court under s 84C of the Native Title Act 1993 (Cth) (the Act) by the New South Wales Aboriginal Land Council as second respondent seeking an order to strike out a native title application by virtue of O 20 r 2 of the Federal Court Rules.
The original application lodged in the name of Esther Florence Ford (nee Bell) regarded the native title rights of the Elouera Aboriginal People. The Land Council purports that the application does not comply with the basic requirements of an application under the Act. In particular, s 61 and s 62 of the old Act (s 84 C of the new Act) which stipulates that the application must adequately identify who is claiming native title, what rights and interests are being claimed and a description of the area in which native title is claimed (62(1)(c)).
If the requirements of a claim are not met, the Act provides for a written notification to the claimants by the National Native Title Tribunal of non-compliance with the Act and the opportunity for amendment by the claimants within a reasonable period of time (s 64(2)(a)).
1. Lindgren J accepted the motion to strike out the native title application as he concluded it failed to adequately identify what the rights and interests claimed were. The judge stated that such an application for native title would be expected to identify what rights and interests were being claimed and adequately identify the area subject to the claim. In analysing the application the judge found that references to ‘meeting’ and ‘fishing’ cannot be ‘read as a claim of a native title right of conducting regular meetings or ceremonies or fishing in respect of any particular part of the area or of the whole of the area subject to the application’: [26].
2. The claimant group had been given the opportunity to amend their application by virtue of s 62 of the old Act that requires a Presidential Member of the National Native Title Tribunal to advise the applicant in writing and give the applicant a reasonable opportunity to satisfy the requirements. The claimants were provided with this opportunity but had never taken this up. The judge ordered that there ‘ought not to be leave to amend. Rather, the application should be struck out’: [27].
3. The application was struck out under s 84(c) of the Act: [28].??