Kogolo v State of Western Australia [2000] FCA 1036

Kogolo v State of Western Australia [2000] FCA 1036

The proper construction of s 64(1) of the Native Title Act 1993 (Cth) is that 'original application' refers to the application as originally filed, not as last amended, so amendments may restore previously excised land provided the claim area does not exceed that originally claimed.

Parties
Applicants: Annette Kogolo, Butcher Wise, Charlie Nundun, Harry Yungabun, Hitler Pamba, Hughie Bent, Ivan McPhee, Jimmy Nerrima, Jimmy Pike, Jinny Bent, Joe Brown, Lucy Cubby, Mona Chuguna, Percy Bulagardie, Peter Clancy, Peter Skipper, Ronnie Jimbidie, Stalin Wodigar, Tommy May, Warford Budjiman, Wilfred Steele; First Respondent: State of Western Australia; Second Respondent: Shire of Derby/West Kimberley; Third Respondents: Snowy Judamia, Billy Thomas, Frank French, Billy Dunn, The Martu People; Fourth Respondents: Nerdlihc Company Inc, Pasminco Australia Ltd
Jurisdiction
Australia
Judgment Date
03 August 2000
Procedural Posture
Native Title Determination Application / Application to Re Amend Application
Outcome
Application to re-amend granted
Legal Topics
Amendment of Native Title Application, Meaning of 'original Application' Under Native Title Act, Area Expansion in Claimant Applications
Native Title Administrative Law Amendment of Native Title Application Meaning of 'original Application' Under Native Title Act Area Expansion in Claimant Applications

Case Brief

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Parties

Annette Kogolo, Butcher Wise, Charlie Nundun, Harry Yungabun, Hitler Pamba, Hughie Bent, Ivan McPhee, Jimmy Nerrima, Jimmy Pike, Jinny Bent, Joe Brown, Lucy Cubby, Mona Chuguna, Percy Bulagardie, Peter Clancy, Peter Skipper, Ronnie Jimbidie, Stalin Wodigar, Tommy May, Warford Budjiman, Wilfred Steele

Applicants

State of Western Australia

First Respondent

Shire of Derby/West Kimberley

Second Respondent

Snowy Judamia, Billy Thomas, Frank French, Billy Dunn, The Martu People

Third Respondents

Nerdlihc Company Inc, Pasminco Australia Ltd

Fourth Respondents

Procedural Posture

Native Title Determination Application / Application to Re Amend Application

Legal Issues

  1. 1 Whether 'original application' in s 64(1) of the Native Title Act 1993 (Cth) refers to the application as initially made or as last amended
  2. 2 Whether amendment can re-include land originally included but subsequently deleted from claim area

Ratio Decidendi

The proper construction of s 64(1) of the Native Title Act 1993 (Cth) is that 'original application' refers to the application as originally filed, not as last amended, so amendments may restore previously excised land provided the claim area does not exceed that originally claimed.

Court Disposition

Application to re-amend granted

Orders

  • The application be re-amended in terms of the amended Native Title Determination Claimant Application filed on 21 June 2000 and that this document stand as the amended application.
  • Any requirement to re-swear the affidavits of the respective applicants verifying the proposed amended application be dispensed with.