Watson on behalf of the Nyikina Mangala People v State of Western Australia [2014] FCA 650 | Case summary

Corporation Limited: IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6099 of 1998

REASONS FOR JUDGMENT 1 I made an order on 20 May 2014 that Oil Basins Limited (Oil Basins) be removed as a party to this application pursuant to s 84(8) of the Native Title Act 1993 (Cth) (NTA). I gave ex tempore reasons. These are they, edited but not so as to alter their substance. 2 Oil Basins is the holder of petroleum exploration permit 5/07-8 EP (the Permit), which overlaps a part of the Nyikina Mangala claim area. Oil Basins applied in October 2012 to be joined as a respondent party and on 15 February 2013, an order for joinder was made after a contested hearing. Thereafter, following its filing of a notice of intention to participate in the hearing of the proceeding, Oil Basins has taken an active part in the proceeding involving a number of court hearings, but resulting ultimately in an order made by the Court confining its involvement in this proceeding to that as provided for under s 225(c) and (d) of the NTA. 3 At least since June 2013, the primary focus in case management conferences conducted before a deputy registrar of this Court has been to guide the parties towards a consent determination, on country, during the first half of 2014. To that end, case management conferences have been held before Deputy Registrar Trott on the following dates: 26 June 2013, 10 July 2013, 6 and 27 September 2013, 7 November 2013, 28 January 2014, 17 February 2014, 14 March 2014, 28 March 2014, 30 April 2014 and 15 and 20 May 2014. Counsel for Oil Basins has, with one exception, appeared at each of these case management conferences. 4 On 27 September 2013, Deputy Registrar Trott made an order that the matter be provisionally listed for a consent determination hearing to be held on country on 29 May 2014. At the case management conference held today, that is 20 May 2014, Mr Kavenagh, counsel for Oil Basins, informed the Deputy Registrar that his instructions were that his client would neither consent to nor execute the minute of proposed consent determination for two reasons. First, it was asserted that his client had not been properly informed as to the basis upon which it should consent. Second, it was asserted that his client was aware of a dispute with the Warrwa claimants (WAD 258 of 2012) in relation to the northern end of the proposed determination area. 5 Confronted by that position, I called this matter on for an urgent hearing, given that the matter has been moving, at very considerable expense, not to mention great effort on the part of many people, towards a consent determination on 29 May 2014. I have had the benefit of detailed written submissions filed on behalf of the applicant. I do not think there is any dispute by Mr Kavenagh, who appears before the Court this afternoon, as to the correctness of the facts asserted by Ms Cole, who signed the submissions on behalf of the Kimberley Land Council (KLC). 6 Ms Cole notes that it is expected that the determination may be attended by up to 400 people including representatives from the National Native Title Tribunal, the State Government, pastoralists, traditional owners from the Nyikina Mangala area as well as from across the entirety of the Kimberley region, including representatives of each of the peak Kimberley indigenous bodies. 7 It is anticipated the cost of holding the determination will be in the region of $80,000. Should the determination not proceed on 29 May 2014 as planned, it would be reasonable to expect that the KLC will be unable to recover at least two-thirds of this cost. I invited counsel for Oil Basins to inform me as to what information it was that his client had not been given, going to the first asserted reason for refusing to consent to the proposed determination. Mr Kavenagh, with appropriate professional candour, informed the Court that his instructions did not rise above that very general assertion. 8 That response speaks volumes and I have no hesitation in saying that if Oil Basins had a substantive basis to fill out that assertion with particulars, then that would have been put before the Court. That is to say, in other words, there is no substance in that asserted reason. Likewise, the second asserted reason concerning the Warrwa dispute is, as I put to counsel for Oil Basins, without demur on his part, irrelevant to this present application. The Warrwa claimants are not a party to the application. They have not applied to become a party. It is, as I described it in the course of debate, a spurious assertion on the part of Oil Basins and I reject it as such. 9 Considerable work has been done by lawyers, particularly those acting on behalf of the applicant and the State of Western Australia, in the preparation of joint submissions, as well as producing the necessary maps that are required for the purposes of the declarations and orders and in due course the judgment that I will require to give in relation to their application for a consent determination. The power of removal of a party, pursuant to s 84(8) of the NTA, is general in expression. I take the view that the particular circumstances in which the power may be exercised which are the subject of s 84(9) do not operate to constrain the general application of s 84(8). In that regard, I would respectfully agree with the conclusions of Logan J in Butterworth v Queensland (2010) 184 FCR 397 at [39]. See also Starkey v South Australia (2011) 193 FCR 450 at [42]-[43]. 10 Beyond the factual background which I have explained and which I regard as centrally relevant to the exercise of the Court's discretion, there are the following matters which are the subject of submission on behalf of the applicant and which I regard as relevant considerations: (a) the legislative purpose behind the NTA which is to encourage parties to resolve native title claims by conciliation and negotiation; (b) the provisions of s 37M of the Federal Court of Australia Act 1976 (Cth) and the overarching purpose of facilitating the just determination of proceedings before the Court in the most inexpensive and efficient way possible; (c) the significant time, money and other resources which have been invested in this application and in the mediation and negotiations with the first respondent and other parties; (d) the additional significant time, money and other resources (including scarce judicial resources) which will need to be expended on delaying the determination hearing; (e) the significant and non-compensable inconvenience, anxiety and stress on members of the claimant group should the determination hearing not proceed; (f) the proximity of the parties, other than OBL, to reaching a negotiated, non-litigated settlement and consent determination of native title; (g) the fact that the applicant does not, in this proceeding, challenge the validity of the Permit and accepts that to the extent of any inconsistency, the native title rights and interests must yield to the rights and interests of the Permit holder. 11 For those reasons there will be an order that Oil Basins Limited be removed as a party to this proceeding forthwith. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Watson on behalf of the Nyikina Mangala People v State of Western Australia

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