McKerracher J
Introduction
This case concerned an application to discontinue a native title compensation claim brought on behalf of the Noongar People over a large area in Western Australia. The application was brought under rr 26.12(2)(c) and 26.12(4) of the Federal Court Rules 2011 (Cth) (FCR). The reason for discontinuation was the registration of the Noongar Indigenous Land Use Agreements in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238 (‘McGlade’).
Background
The compensation application was filed on 26 November 2019. On 19 December 2019, the Full Court delivered its judgment in McGlade. On 21 January 2020, the State of Western Australia filed an application to strike out the claim on the basis that compensation had been fully and finally addressed by the ILUAs.
Reasons for discontinuance
On 24 November 2020 the applicant, Ms Smith, held a meeting with Elders and other members of the Noongar community. At that meeting it was unanimously agreed that the claim be withdrawn. As the application was made by Ms Smith as a representative party, leave was required under r 26.12(4) of the FCR. Ms Smith sought that there be no order as to costs, relying on s 85A(1) of the Native Title Act 1993 (Cth) (NTA).
Reasons for decision
A factor that will usually affect the exercise of discretion in relation to native title proceedings is whether the claim group has been consulted about the proposed discontinuance. The evidence provided in this case suggests consultation had occurred and the Elders and other member of the claim group indicated their support for the discontinuance. Additionally, there was no opposition from the State.
The strike out application was brought at an early stage in the proceeding, and the parties had taken no steps to progress the proceeding pending the outcome of the appeal application in McGlade. The Court also found it would be undesirable to for Ms Smith to continue with the litigation unwillingly in a situation where she and the claim group have been informed that the litigation is unlikely to succeed by reason of upholding the validity of the ILUAs.
The Court also noted the State’s submission in their strike out application that Ms Smith was not properly authorised. Having regard to s 84D(4) of the NTA and s 37M of the Federal Court of Australia Act 1976 (Cth) the Court decided that the orders sought were appropriate despite improper authorisation. His Honour concluded that leave should be grated to discontinue the claim, with no order as to costs.