In this matter, Rangiah J granted the applicant leave to discontinue the Warrabal native title claim due to issues with its authorisation.
Under r 26.12(4) of the Federal Court Rules 2011 (Cth), a representative party must obtain the leave of the Court to file a notice of discontinuance. Native title proceedings are conducted by a representative party: see r 9.21(1) of the Federal Court Rules; Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300 at [5].
The Warrabal claim is one of a cluster of applications for determinations of native title over areas of Central Queensland. It wholly overlaps the Gaangalu claim.
The State of Queensland opposed the application due to its concern that if the Warrabal claim is permitted to be discontinued, it would be open to the Warrabal claim group to commence another proceeding and cause major disruption to the programming and conduct of the other matters. Further, the underlying Warrabal dispute would remain unresolved.
Rangiah J referred to the principles relevant to a grant of leave to discontinue which were summarised by Lee J in Trade Practices Commission v Manfal Pty Ltd (No 3) [1991] FCA 650; (1991) 33 FCR 382 at 383–384. His Honour also referred to two native title decisions in which leave to discontinue was sought: Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321; Close on behalf of the Githabul People #2 v State of Queensland [2010] FCA 828.
Registration of the Warrabal claim was rejected pursuant to s 190A(6B) of the Native Title Act 1993 (Cth) (NTA). The reasons given by the Registrar’s delegate included that the claim was not properly authorised. The Warrabal applicant concedes that the Warrabal claim is not properly authorised and cannot succeed. It is for that reason that the Warrabal applicant seeks to discontinue the claim.
His Honour at [15]-[16] considered it ‘inevitable’ that the claim would fail if prosecuted to trial given that concession and in the circumstances, the reasons for compelling the Warrabal applicant to continue to prosecute a claim that it concedes will not succeed ‘would have to be strong to justify such a course.’
The State submitted that the Warrabal applicant should not be given leave to discontinue unless it gives some kind of undertaking that no future claim will be brought on behalf of the Warrabal People. The Court at [17] found it difficult to see how the applicant could give any such undertaking on behalf of all the members of the claim group: ‘Section 62A of the NTA provides an applicant with authority to deal with matters arising under the NTA in relation to an existing claim - not any future one. The question of whether any claim may be brought in the future is not for the applicant, but for the claim group as a whole. Even if the applicant gave such an undertaking, it could not bind the claim group.’ Rangiah J considered it very unlikely on the evidence presently available to the Court that a further application may be brought on behalf of the Warrabal People over the same area.
The State further submitted that, as in Levinge, leave to discontinue should not be granted because no evidence has been produced that the members of the claim group as a whole have been consulted and agree with the discontinuance of the claim. Rangiah J at [19]: Firstly, the premise of the submission is not entirely correct, since there is evidence that some members of the Warrabal claim group who are also part of the Gaangalu claim group are opposed to the Warrabal claim and would, presumably, support its discontinuance. Secondly, the question of leave to discontinue involves the exercise of a discretion and must depend upon the particular circumstances of the particular case under consideration. Levinge does not purport to establish any immutable rule that there must be evidence of the applicant having consulted with and obtained the consent of the claim group as a whole to discontinue a proceeding. In my opinion, the starting point is that it is within the power of an applicant under s 62A of the NTA to discontinue a claim. The decision to seek leave to discontinue was a unanimous decision of the applicant and there is nothing to suggest dissention upon that issue within the claim group. The applicant’s decision was made having received legal advice that the claim is not properly authorised. Whatever views might be expressed by members of the claim group upon being consulted would not change that position. The position was otherwise in Levinge where the claim was to be discontinued because of a lack of funds, with a view to a new claim being filed when funds became available.
His Honour concluded that it would not be in the interests of justice to compel the Warrabal applicant to proceed with a claim that it concedes, on legal advice, is fundamentally and fatally flawed and ordered that the Court’s discretion be exercised to allow the Warrabal People claim to be discontinued.