Proposal 11–4 The Native Title Act 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).
11.52 Proposal 11–4 would clarify 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.
11.53 In Watson v Western Australia (No 5), Gilmour J dismissed a party that indicated it would, apparently without basis, refuse its consent to a consent determination. In reaching the decision to dismiss that party, Gilmour J had regard to a range of matters, such as:
- the purpose behind the Native Title Act, being to encourage the resolution of native title claims through conciliation and negotiation;
- the time, money, and other resources which had been invested in the application and which would be required if the consent determination were delayed;
- the inconvenience on the claimant group if the consent determination were not to proceed; and
- the proximity of the remaining parties to reaching settlement.
11.54 AIATSIS suggested that, in light of Watson v Western Australia (No 5), there may be uncertainty as to whether the Court must take the matters of s 84(9) into consideration when making a decision to dismiss a party, or whether those matters were merely possible considerations for the Court. Proposal 11–4 would remove this uncertainty.
The Chamber of Minerals and Energy of Western Australia (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.