Colbung v The State of Western Australia [2003] FCA 774

Colbung v The State of Western Australia [2003] FCA 774

The Harris claim was not struck out because the amended application contained no descriptive uncertainty in the identified claim group and no issue as to that group's authorisation; its recognition that other family groups may also have rights did not make the claim necessarily one by an unauthorised sub-group, and the ambiguities should not be resolved on a strike out motion. The Isaacs claim was struck out because the description 'The Isaacs Family and other Related People including George Webb' was too uncertain to identify the group on whose behalf the claim was pursued and therefore did not comply with s 61 of the pre-1998 Act.

Jurisdiction
Australia
Judgment Date
29 July 2003
Procedural Posture
Native Title Determination Applications; Motion to Strike Out Under S 84 C(1) of the Native Title Act 1993 (cth) / Reasons for Judgment and Orders on the Colbung Claimants' Motion to Strike Out the Harris and Isaacs Claims
Outcome
The motion was dismissed as to the second Applicants and allowed as to the third Applicants; the Isaacs claim was to be struck out.
Legal Topics
['authorisation of Native Title Claim Group' 'description and Identification of Claimants' 'strike Out for Non Compliance With S 61 of the Native Title Act 1993 (cth)' 'overlapping Native Title Applications' 'evidence of Deceased Persons']
['native Title' 'evidence'] ['authorisation of Native Title Claim Group' 'description and Identification of Claimants' 'strike Out for Non Compliance With S 61 of the Native Title Act 1993 (cth)' 'overlapping Native Title Applications' 'evidence of Deceased Persons']

Case Brief

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Procedural Posture

Native Title Determination Applications; Motion to Strike Out Under S 84 C(1) of the Native Title Act 1993 (cth) / Reasons for Judgment and Orders on the Colbung Claimants' Motion to Strike Out the Harris and Isaacs Claims

Legal Issues

  1. 1 ['Whether the Harris claim should be struck out under s 84C(1) for failure to comply with s 61(1) of the Native Title Act 1993 (Cth) because the Harris family was only a family or sub-group rather than the native title claim group.' 'Whether the Harris application sufficiently identified the native title claim group and was properly authorised by that group.' 'Whether the Isaacs claim, filed under the pre-1998 Act, complied with the requirement to describe or otherwise identify the other persons with whom the named applicants claimed to hold native title.' 'Whether the inclusion of George Webb in the Isaacs claim affected the adequacy of the claim group description.']

Ratio Decidendi

The Harris claim was not struck out because the amended application contained no descriptive uncertainty in the identified claim group and no issue as to that group's authorisation; its recognition that other family groups may also have rights did not make the claim necessarily one by an unauthorised sub-group, and the ambiguities should not be resolved on a strike out motion. The Isaacs claim was struck out because the description 'The Isaacs Family and other Related People including George Webb' was too uncertain to identify the group on whose behalf the claim was pursued and therefore did not comply with s 61 of the pre-1998 Act.

Court Disposition

The motion was dismissed as to the second Applicants and allowed as to the third Applicants; the Isaacs claim was to be struck out.

Orders

  • ['The motion be dismissed as it relates to the second Applicants.' 'The motion be allowed as it relates to the third Applicants.']