This case was concerned with two interlocutory applications filed on behalf of the Yugunga-Nya applicant. The first interlocutory application, filed on 30 July 2021, sought to modify an order of the Court made on 16 March 2021. The second interlocutory application, filed on 6 August 2021, sought to remove a particular individual from the Yugunga-Nya People’s native title application.
Background
The Yugunga-Nya People’s native title application, brought pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA), covers an area of land in the mid-western region of Western Australia. Part of the application overlaps with an area that is also a part of an application filed by the Gingirana People. By order of the Court, at the time of these proceedings the overlap was subject to a mediation process that included an experts’ conference.
The first interlocutory application sought to amend an order of the Court in relation to the experts’ conference to be conducted by Judicial Registrar Daniel of the Court in August 2021. The applicant sought to include an order that the expert work and any other relevant materials would be provided to their legal representatives.
The secondary interlocutory application arose due to the discovery that another lawyer had been instructed to act on behalf of at least one member of the Yugunga-Nya applicant that did not consent to the proposed determination.
Submissions
First Interlocutory application
Mr Gaffney submitted that he believed he would not be able to properly engage with the Yugunga-Nya applicant’s expert without access to the expert material.
The Gingirana applicant submitted that the original orders had been agreed on and consented to. It was also submitted that expert’s conferences generally achieved more positive outcomes without the involvement of legal representatives.
Second Interlocutory application
Mr Gaffney submitted that the interlocutory application was a cautious approach to seeking the removal of any barrier to the Court in making a determination of native title that was pursuant to the wishes of the rest of the applicant group.
Decision
First Interlocutory Application
Acknowledging that the original orders had been made by consent and that preparations for the experts’ conference had been conducted on the basis of these orders, Mortimer J held that it was inappropriate for the applicants to seek an alteration of the orders at such a late stage. Mortimer J dismissed the application.
Second Interlocutory Application
As the application to remove a member from the application group was in pursuit of allowing the Court to be able to make a determination of native title, Mortimer J concluded that the application should not be considered until a prescribed body corporate was nominated. Mortimer J stated that this would ensure the Court was in an active position to consider the application for consent determination. Mortimer J added that if there were still barriers to the Court making a determination following the nomination of a prescribed body corporate, the second interlocutory application might need to be considered.