Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia [2023] FCA 303

Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia [2023] FCA 303

The contested amendments to paragraphs 6, 7, 17 and 18 were prohibited by s 64(1) of the Native Title Act 1993 (Cth) because the original Form 4, read as a whole including Schedules B and C and the map, limited the compensation application area to NT Portion 4319 and the outer boundaries of the earlier native title determination area. The references in Schedule I to ML 1126 and the Road did not override those geographic limitations or incorporate the contested areas outside the determination area. Allowing the amendments would therefore include areas not covered by the original application.

Jurisdiction
Australia
Judgment Date
27 March 2023
Procedural Posture
Native Title Compensation Application / Interlocutory Application for Leave to Amend Form 4 Originating Application, Determined on the Papers
Outcome
Leave to amend was granted in part; leave was refused for the proposed amendments to paragraphs 6, 7, 17 and 18, and the interlocutory application was otherwise dismissed.
Legal Topics
['native Title Compensation' 'amendment of Compensation Application' 'form 4 Originating Application' 'identification of Compensation Application Area' 'section 64(1) Native Title Act 1993 (cth)']
['native Title' 'federal Court Procedure'] ['native Title Compensation' 'amendment of Compensation Application' 'form 4 Originating Application' 'identification of Compensation Application Area' 'section 64(1) Native Title Act 1993 (cth)']

Case Brief

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Procedural Posture

Native Title Compensation Application / Interlocutory Application for Leave to Amend Form 4 Originating Application, Determined on the Papers

Legal Issues

  1. 1 ['Whether proposed amendments to paragraphs 6, 7, 17 and 18 of the Form 4 compensation application would result in the inclusion of areas of land or waters not covered by the original application contrary to s 64(1) of the Native Title Act 1993 (Cth).' 'Whether the original compensation application, read with Schedules B, C and I, already covered the parts of ML 1126 and the Road falling outside the earlier native title determination area.' 'How Form 4 should be construed in identifying the boundaries of the compensation application area.']

Ratio Decidendi

The contested amendments to paragraphs 6, 7, 17 and 18 were prohibited by s 64(1) of the Native Title Act 1993 (Cth) because the original Form 4, read as a whole including Schedules B and C and the map, limited the compensation application area to NT Portion 4319 and the outer boundaries of the earlier native title determination area. The references in Schedule I to ML 1126 and the Road did not override those geographic limitations or incorporate the contested areas outside the determination area. Allowing the amendments would therefore include areas not covered by the original application.

Court Disposition

Leave to amend was granted in part; leave was refused for the proposed amendments to paragraphs 6, 7, 17 and 18, and the interlocutory application was otherwise dismissed.

Orders

  • ['The applicants have leave to file an amended compensation application in the form of Annexure MG-2 to the affidavit of Martyn Gray filed 22 November 2021, save that leave is refused to make the amendments proposed to paragraphs 6, 7, 17 and 18 of the original compensation application.' 'The interlocutory...