Recommendation 11–4 The Native Title Act 1993 (Cth) should be amended to clarify that the Federal Court’s power to dismiss a party (other than the applicant) under s 84(8) is not limited to the circumstances contained in s 84(9).
11.123 Recommendation 11–4 makes clear that the Court, when considering whether to dismiss a party under s 84(8), may consider a wider range of circumstances than those set out in s 84(9). Section 84(8) of the Act provides that the Federal Court may at any time order a person, other than the applicant, to cease to be a party to the proceedings. Section 84(9) provides:
The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:
(a) the following apply:
(i) the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and
(ii) the person’s interests are properly represented in the proceedings by another party; or
(b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings.
11.124 AIATSIS suggested that there may be uncertainty as to whether the Court must take the matters listed in s 84(9) into consideration when making a decision to dismiss a party, or whether those matters were merely possible considerations for the Court. Recommendation 11–4 would make clear that s 84(9) simply provides one set of circumstances in which the Court is to consider making an order under s 84(8). On the other hand, some stakeholders submitted that it was sufficiently clear that the Court’s power under s 84(8) is not limited to the circumstances contained in s 84(9), and there are decisions indicating that the Court may take other factors into account. However, these stakeholders did not oppose clarifying the matter in the Act. Stakeholders who commented on this proposal generally supported it.
CME also noted that problems associated with large numbers of respondents: ‘could be addressed at least in part by amendments to make it easier for respondents to withdraw from claims. Presently, if a claim has been heard or part-heard, a respondent can only withdraw by making a formal application, which can involve significant time and resources. Allowing respondents to withdraw from a claim through a more informal process would reduce costs and help address the problem of having large numbers of respondents to claims’: Chamber of Minerals and Energy of Western Australia, Submission 21.
Cheinmora v Western Australia  FCA 727 (25 July 2013); Butterworth on behalf of the Wiri Core Country Claim v Queensland  FCA 325 (26 March 2010).
Yamatji Marlpa Aboriginal Corporation, Submission 62; Law Society of Western Australia, Submission 41.
AIATSIS, Submission 70; South Australian Government, Submission 68; NTSCORP, Submission 67; Minerals Council of Australia, Submission 65; YamatjiMarlpa Aboriginal Corporation, Submission 62; National Native Title Council, Submission 57; A Frith and M Tehan, Submission 52; The Chamber of Minerals and Energy of Western Australia, Submission 49; Central Desert Native Title Service, Submission 48; Native Title Services Victoria, Submission 45; North Queensland Land Council, Submission 42.