Case: Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495
Outcome: followed
my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The Commonwealth and Group 6A rely on the related cases, Dieri People and Edward Landers . There were two applications in those cases. The first was brought by eight named people to whom I will refer as 'the Dieri Mitha', and was expressed to be brought on behalf of 'the Dieri People'. The second was brought, also on behalf of the Dieri people (but see below), but by an 'Edward Landers group' which was a sub-group of the Dieri People. The second application was in respect of an area wholly within the area the subject of the Dieri Mitha application. In Edward Landers , the Dieri Mitha group sought a striking out of the Edward Landers application under s 84C or a summary dismissal of it under O 20, r 2(1)(a) of the FCRs. In Dieri People , the Edward Landers group sought a striking out or summary dismissal of the Dieri Mitha application. The grounds relied on in each motion were in substance the same. In Edward Landers , Mansfield J noted ([29] ff) that the reason for the express exclusion in the Edward Landers application was twofold: the application of s 190C(3) of the NTA, and the fact that six of the persons excluded had given instructions that they did not wish to be included in the Edward Landers application. Mansfield J said ([32]) that, whatever the reason, the Edward Landers application did not comply with s 61(4), because it did not describe the native title claim group 'sufficiently clearly so that it can be ascertained whether any particular person is one of those persons'; rather, it described a smaller group that remained after the exclusion. The Edward Landers applicant group was a sub-group of the native title claim group. His Honour said ([33]) that the NTA does not permit the making of an application by a sub-group of a native title claim group or the recognition of native title as being held by such a sub-group of the 'real' native title claim group. His Honour dismissed the Edward Landers application. The Wongatha applicants submit that the small claim groups in Dieri and Landers acknowledged that they were only part of 'the proper claimant group', and that the 'Court's reasoning focuses' on the authorisation by the claimants, not by those potential native title holders who may eventually be subject to a determination. They also submit, in relation to the Maduwongga application, that s 61 should not be interpreted to require authorisation of the Wongatha application by Ms Strickland and Ms Nudding, who elected to continue with their own native title claim and therefore asserted that they hold native title other than the particular native title claimed by the Wongatha applicants. The Cosmo applicants submit that any apparent overlap in group membership (as between the Wongatha and Cosmo Claim groups) is due to claims being brought on the basis of different views of how country is claimed, which is a matter to be decided on the evidence. They say that the exclusion clauses are articulations of the operation of the traditional law of Western Desert land tenure which, they submit, allows for choice in claiming country. I do not see any basis on which the Court could make a determination in favour of a group that did not include those members of the Wongatha People who were excluded in the Wongatha Form 1 filed on 1 November 1999. As Mansfield J held in both Dieri People and Edward Landers , s 61 permits a native title determination application to propose only a determination in favour of all the members of the native title claim group. By reason of the exclusion, the Wongatha Claim does not meet the requirements of ss 61(1) and (4). I discussed Dieri People and Edward Landers in the context of the Wongatha application at 4.1 [1209] ff, and will not repeat the discussion here. Those cases are not on all fours with the Wutha case because the determination that was sought was one on behalf of the larger group. Mansfield J held ( Dieri People at [54]-[57]; Edward Landers at [29]-[33]), in substance, that there must be a coincidence between the group for which a determination is sought and the authorising group. With respect, I agree, and refer to my discussion at 4.1 [50].