Case: Strickland v Native Title Registrar (1999) 168 ALR 242
Outcome: followed
8 June 1999, a delegate of the NT Registrar decided pursuant to s 190A of the NTA, that the Maduwongga Claim should not be accepted for alleged failure to comply with s 190C(3) of the NTA. That decision led to litigation ( Strickland v Native Title Registrar (1999) 168 ALR 242 (FCA)) (' Strickland ') in which French J set aside the decision and directed the NT Registrar to accept the Maduwongga Claim and to include details of it in the Register of Native Title Claims. An appeal by the State was dismissed: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 (' WA v Strickland '). The Amending NTA speaks as from the date of its commencement. Accordingly, the authorisation requirement of s 61(1) applies to applications that are 'made' after the relevant provisions of the Amending NTA commenced on 30 September 1998. The question then arises, does 'made' refer to the lodgement of the form of application with the Court or does it have an ongoing operation down to the hearing? The Amending NTA provides that s 84C applies where, relevantly, the main application for a determination of native title was made either before or after the commencement, but that if it was made before the commencement, the reference in s 84C to s 61 is a reference to s 61 of the Old Act: Amending NTA, s 3, Schedule 5, Pt 5 Item 21. This provision suggests that for the purposes of s 84C, an application is 'made' when the Form 1 is lodged or filed. (This view is consistent with the decision of French J, in a different context, that a new application is made under the New NTA when the Form 1 is filed in the Court: see Strickland at [35].) What is the position, however, where an application, lodged before the amendment of s 61(1) (and the commencement of s 84C), is amended subsequently? In Strickland , French J said ([37]) that where the three Old NTA Maduwongga applications were 'combined' after 30 September 1998, the combined application was not a 'new' application (made at the time of the combination) but was treated by s 64(2) as a species of 'amended' application. Subsection 64(2) operates as a qualification on s 64(1), which provides that 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. His Honour said that 'in the case of a combination of [O]ld Act applications, the combined application, like its components [see Amending NTA, Sch 5, Pt 3, Items 5 and 6], is taken to have been made on 30 September 1998' ([37]). In WA v Strickland the Full Court held ([44]-[45]) that where Old NTA applications are combined after the New NTA commenced, for the purposes of s 190C(3)(b), the date 'when the initial application was made' is not 30 September 1998, but the date when the 'initial' application was made to the NT Registrar. That date was the date of the making of the last of the three Maduwongga applications that were combined, namely, 8 April 1998 (see 2.6 [234]). The scheme of ss 64(1A), (1) and (2) is plain enough. Their concern is limited to that of the area of land or waters covered by applications. Subsection (1A) provides that an application may be amended at any time to reduce the area of land or waters covered by it (a sentence in the subsection provides that the subsection does not by implication limit amendment in any other way); subs (1) provides that an amendment must not result in the inclusion of additional land or waters; and subs (2) provides that if the application combines two or more claimant applications, the prohibition in subs (1) does not apply. No legislative purpose would be served if the subs (1) prohibition applied where applications, in all respects identical except as to the respective areas covered by them, are combined, because the previous applications in aggregate would have previously covered the area of the combined application. Subsections 64(1A), (1) and (2) have nothing to say, however, to amendments other than amendments to the area covered by an application. Amendments of other kinds are generally left at large by the NTA, although s 64(5) ensures that the authorisation requirement of s 61(1) applies to an amendment which changes the identity of the applicants on a claimant application. Subsection 64(5) assumes that there has been no change in the composition of the native title claim group, or, at least, does not address that situation.