Gilmour J
In this matter the Court considered whether Kalumburu Aboriginal Corporation (KAC) should be removed as a respondent to the Balanggarra native title application (Balanggarra applicant).
Background
KAC was joined as a respondent on 13 September 2011 on the basis of its 'proprietary interests' in a general lease (Kalumburu Reserve) in part of the claim area which it said may be affected by a native title determination.
The Balanggarra applicant claimed that the creation and vesting of the Kalumburu Reserve is considered a past act under s 228 of the Native Title Act 1993 (Cth) (NTA) and the non-extinguishment principle applied. In this case, the native title rights were granted to the Aboriginal Lands Trust and then further granted to KAC. Therefore, if there is any inconsistency between KAC’s rights and the native title rights and interests in question, KAC’s rights prevail as a matter of law.
The Balanggarra applicant had put forward a proposed minute of consent determination (MCDNT) to acknowledge and protect the interests of KAC. The MCDNT recognised KAC’s interest in the Kalumburu Reserve as an ‘other interest’. Balanggarra Aboriginal Corporation (BAC) was nominated as the Prescribed Body Corporate (PBC) and the claim group instructed BAC to incorporate Land Management Companies to allow Land Groups, on behalf of the PBC, to do native title business in their Land Group area.
KAC claimed an interest in the post determination management of native title in its area of interest and would not consent to a determination unless the native title was held by two separate PBCs. KAC also raised concerns that it had not been acknowledged that Land Group 1 had authorised three of its elders to represent the group in relation to the native title claim. On this point, his Honour said it was not relevant to the proceedings, as a respondent cannot act in a representative capacity for others.
KAC also claimed that its interest in the proceedings arise out of KAC’s purposes, which include supporting the local traditional owners.
Reasoning
The Court noted that it has a wide and unfettered discretionary power to dismiss parties under s 84(8) and (9) of the NTA.
Justice Gilmour concluded that KAC did not have a legitimate interest in the way native title is managed by the claim group or their nominated PBC after the determination. The Court found that an Aboriginal corporation is not able to rely on the interests of its members to become a respondent in a native title proceeding. The claimed interests are those of individual members of KAC who could be parties to the application themselves and are therefore not a sufficient basis for KAC’s continued involvement in the proceeding. His Honour also noted that nothing in a determination of native title would affect KAC’s ability to carry out its objectives, including supporting the local traditional owners, in the future.
As the Balanggarra application was lodged in 1995, almost 18 years ago, the Court considered the continued prescence of KAC in the proceedings would likely delay and interfere with the progress of the claim towards a consent determination.
His Honour concluded that it was in the interest of justice that KAC be dismissed as a party and was therefore satisfied that the Court should exercise its discretion under s 84(8) of the NTA to order that KAC be removed from the proceedings.
Orders
One affidavit filed in support of the application is only to used for the hearing.
The Kalumburu Aboriginal Corporation cease to be a party to the proceedings
No order as to costs.