Gilmour J
In this decision, Gilmour J made an order removing Oil Basins Limited (Oil Basins) as a party to the native title application by the Nyikina Mangala claim group forthwith.
Background
Oil Basin holds a petroleum exploration permit (the Permit) which overlaps part of the Nyikina Mangala claim area. Oil Basins was joined as a respondent party in February 2013. Since then, counsel for Oil Basins has been actively involved in the proceedings and attended 12 case management conferences between June 2013 and May 2014.
The matter was provisionally listed for a consent determination hearing on 29 May 2014.
At the next case management conference, on 20 May 2014, counsel for Oil Basins, Mr Kavenagh, stated that his client had instructed him that it would not consent to to nor execute the minute of proposed consent determination for two reasons:
his client had not been properly informed as to the basis upon which it should consent
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.
Gilmour J called an urgent hearing on the basis that the matter has been moving towards at consent determination, at considerable expense and effort. At the hearing, Mr Kavenagh explained that his instructions did not rise above that very general assertion.
Gilmour J reasoned that if Oil Basins had a substantive basis to argue that it did not receive certain information, it would have been put before the Court. As none had been provided there is no substance in the asserted reason.
Gilmour J also considered any Warrwa dispute irrelevant because the Warrwa claimants were not a party to the application. His Honour described this as ‘a spurious assertion on the part of Oil Basins’ and rejected it.
The power of section 84(8) NTA
Gilmour J took the view that s 84(8) of the NTA gives the Federal Court general power to remove a party from proceedings and s 84(9) is not an exhaustive list of situations where the power to remove can be exercised: Butterworth v Queensland (2010) 184 FCR 397 at [39].
Gilmour J noted several relevant considerations to the exercise of the Court’s discretion:
the purpose of the NTA is to encourage parties to resolve claims through reconciliation and negotiation;
the overarching purpose of the Federal Court of Australia Act 1979 (Cth) (and particularly s 37M) is to facilitate the just determination of proceedings in the most inexpensive and efficient way possible;
the significant time, money and other resources which have been invested in this application and the mediation and negotiations;
the additional significant time, money and other resources (including judicial resources) which would be needed to delay the determination hearing;
the significant and non-compensable inconvenience, anxiety and stress to members of the claimant group if the determination hearing does not go ahead;
the parties (other than Oil Basins) are very close to reaching a consent determination;
the applicant does not challenge the validity of the Permit and accepts that, to the extent of any inconsistency, native title rights and interests must yield to the rights and interests of the Permit holder.
For these reasons, Gilmour J ordered that Oil Basins should be removed as a party to the proceeding.