White J
In this case Nappamurra Pty Ltd (Nappamurra) applied under r 9.12 of the Federal Court Rules 2001 (Cth) for leave to intervene in the Oodnadatta Common Overlap native title proceedings. This was opposed by all parties to that case. White J refused the application.
Background
The proceedings concern overlapping native title claims brought by the Arabana People and the Walka Wani People. The claims span an area150 km2 in size in the far north of South Australia (SA) and include the town of Oodnadatta and its surroundings.
Nappamurra is the holder of Pastoral Lease No. 2408, known as Allandale Station. Allandale Station partially joins the boundaries of the claimed area. Nappamurra asserted that the fenced boundary was not the boundary stipulated in an informal 1984 agreement and that consequently there was overlap between the Allandale Station and claim area. It filed an application for leave to intervene on 24 December 2020. By this stage, the trial (September 2019) and the hearing (April 2021) had already been concluded and the matter was adjourned to March 2021 for final submissions. Parties had filed extensive written submissions, including replies.
Submissions
Nappamurra
Nappamurra stipulated that it only wished to agitate a minor aspect of the proceedings which did not involve questioning evidence, which mitigated the prejudice caused by the application’s delay. It submitted it had an interest affected as defined by s 253 Native Title Act 1993 (Cth) definition, as if the fenced boundaries were relied on, Nappamurra would lose carrying capacity for 30‑50 cattle.
Claimants
Both the Arabana and the Walka Wani claimants opposed Nappamurra intervening, predominantly due to the prejudice that would result to them from the lateness of the application.
South Australia
The State also opposed the application on the basis of the delay that would be caused, submitting the present application should be dismissed but that there should be an opportunity for Nappamurra to apply again once the Court had finalised the underlying claims.
Decision
White J accepted that Nappamurra had the requisite interest and assumed, had the application been more timely, it would have been accepted. However, considering Nappamurra was aware of the proceedings since September 2019; it lacked a draft provision it would want to be included in any determination of native title; and the late stage in litigation, White J concluded the prejudice to the present parties was beyond a costs order. Following the State’s recommendation, White J refused the application to intervene before the parties made their final submissions, deferring its consideration until after the Court had published its findings on the overlapping claims.