This case concerned an order to remove a party to proceedings pursuant to s 84(8) of the Native Title Act 1993 (Cth) (NTA). By application dated 28 May 2021, the State sought an order that Ms Bella Bropho cease to be a party to the proceedings of a native title claim lodged on behalf of the Whadjuk People on 23 June 2011.
Background
The State and other parties including Noongar/Nyoongar/Nyungar/Nyoongah people who are members of the Whadjuk People had engaged in negotiations resulting in the entry into and registration of six Indigenous land use agreements (ILUAs) covering an area of over 200,000 km2 in the South West of Western Australia. This was with the aim of resolving current and future native title claims. Consistent with s 24EA(1)(b) of the NTA, an ILUA is binding on all people holding native title over that area. The parties to the six ILUAs agreed to consent to determinations that native title does not exist in the area covered by the ILUAs except for the Swan River People #2 (SRP2) claim. On 30 April 2021, the State applied to dismiss the SRP2 claim. Ms Bropho is a member of both the SRP2 claim and the Whadjuk claim.
Submissions
The States submitted that the Court should exercise their discretionary power under s 84(9) of the NTA to dismiss Ms Bropho from proceedings regarding the Whadjuk claim for the purpose of facilitating the process of executing consent orders.
The State argued the Court should into account Gilmour J’s judgment in Watson v Western Australia (No 5) [2014] FAC 650 that it is within the legislative purpose of the NTA to encourage parties to resolve native title claims by conciliation and negotiation and under s 37M of the Federal Court of Australia Act 1976 (Cth) proceedings were to be determined in the most efficient way regarding additional time and money. The State also relied on Mansfield J’s judgment in Starkey v South Australia [2011] FCA 456 that relevant considerations in dismissing a party included a probable delay in negotiation and instances where the party’s interests are already adequately addressed by the claim group.
Ms Borpho did not make any submissions.
Decision
McKerracher J held that due to the probable delay resulting from Ms Bropho’s failure to consent, the consideration of additional time and money, and the fact that Ms Borpho’s interests were adequately covered by the SRP2, it was appropriate to order the removal of Ms Bropho as a party to the proceedings of the Whadjuk claim.