In this case Sackville J made a determination that native title does not exist over a property in Winton, Queensland known as ‘Castle Hill Holding’. This was a non-claimant application brought under s 61(1) of the Native Title Act 1993 (Cth) (‘NTA’) by a non-Indigenous pastoralist who held a lease over the land. The determination was made without a hearing on the basis that the application was unopposed (NTA s 86G(1)(a)).
Background
The application was considered to be unopposed as the only respondent to the application was the State of Queensland which notified the Court in writing that it did not oppose the order, as required by NTA s 86G(2). At an earlier stage of the proceeding, the Koa People, who had interests in the land, were joined as respondents to the application as they had previously instituted a separate claimant application under NTA s 61. After the Koa People didn’t file and serve a statement of claim and defence within the specified timeframe as required by orders on 12 December 2001, leave was granted on 15 March 2002 to withdraw from the proceedings and discontinue the claimant proceedings. The Koa People subsequently filed a notice that they wished to cease being a party to the non-claimant proceedings.
Conclusion
Sackville J considered that this withdrawal amounted to an informed decision not to oppose the order sought, noting that they were legally represented. However, at no point did the Koa people notify the Court in writing that they did not oppose the order sought.
Section 84(3) of the NTA provides that another person is a party to the proceedings if the person’s interests may be affected by a determination in the proceedings. Although the Koa people had interests in the proceeding, Sackville J found that the provision did not work to deem them party to the proceedings after their withdrawal in a manner contemplated by s 84(7) of the NTA.