28.05.2015
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).[159] 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.[160] However, these stakeholders did not oppose clarifying the matter in the Act.[161] Stakeholders who commented on this proposal generally supported it.[162]
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[159]
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.
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[160]
Cheinmora v Western Australia [2013] FCA 727 (25 July 2013); Butterworth on behalf of the Wiri Core Country Claim v Queensland [2010] FCA 325 (26 March 2010).
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[161]
Yamatji Marlpa Aboriginal Corporation, Submission 62; Law Society of Western Australia, Submission 41.
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[162]
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.