Griffiths J made orders in the terms sought by the applicant:
it have leave to file an amended native title determination application under s 61(1) of the Native Title Act 1993 (Cth) (NTA) substantially in the form attached to Mr Blackshield’s first affidavit;
the Gundungurra Tribal Council Aboriginal Corporation, the Gundungurra Aboriginal Heritage Association Inc and The Gully Traditional Owners Inc cease to be parties to the application, on the grounds that they will no longer have interests that may be affected by a determination in this proceeding
The amendment sought by the applicant was to reduce the area covered by the application (see s 64(1A) NTA), which would have the consequence of also removing the three parties specified above because their asserted interests are confined to land and waters in the area which the applicant proposes to excise from its original s 61 application.
The applicant confirmed that it had emailed a copy of the interlocutory application and second supporting affidavit to the email address for the Gundungurra Tribal Council Aboriginal Corporation. It noted that it had not been served with any objection by that Corporation to the orders sought in the interlocutory application. The applicant provided signed proposed consent orders which indicated that both the Gully Traditional Owners Inc and the Gundungurra Aboriginal Heritage Association Inc consented to the orders sought in the interlocutory application.
Griffiths J was satisfied that the Court should grant the relief sought by the applicant in circumstances where s 64(1A) confers a statutory right to amend the claim: Walker v Queensland [2004] FCA 640 at [11] per Allsop J. His Honour did not consider that the proposed changes require further express authorisation to that previously given, relying on Champion v State of Western Australia [2009] FCA 941 at [4] to [13] per McKerracher J and also taking into account the notice which was given prior to the meeting which was held on 26 November 2016 and to the terms of resolution passed at that meeting, particularly resolution 3, copies of which are in Mr Blackshield’s (counsel for the applicant) third affidavit.
His Honour found that it was clear from the Form 5 documents filed by the three relevant entities associated with the Gundungurra People that they were joined as respondents because of their interests relating to the area which the applicant now seeks to excise from its claim. Although no response has been received from the Gundungurra Tribal Council Aboriginal Corporation concerning the interlocutory application, the Court was satisfied, based on Mr Blackshield’s third affidavit, that the Corporation was put on notice of the interlocutory application and has not indicated any opposition to it.
The interlocutory application was also opposed by Messrs John Riley and Wayne Carr. Griffiths held that the matters they raised appear to relate to the substantive proceeding and should be heard and determined at a later stage. His Honour was not persuaded that any of the matters raised by them provides a sufficient basis for not granting the relief the applicant seeks.
His Honour did not make an order for costs, having accepted the applicant’s submission that the excision of the relevant area reflects a general strategy on the applicant’s part to avoid or minimise actual and potential overlaps with neighbouring groups.