Barker J
In this matter, the applicant applied for compensation relating to the extinguishment of native title over the Gibson Desert Nature Reserve (Reserve) following the Ngaanyatjarra Lands determination. The respondent was the State of Western Australia (State) and the Attorney- General of the Commonwealth of Australia (Commonwealth) was intervener.
The Court considered whether it was in the interests of justice to permit the State and the Commonwealth to withdraw fundamental admissions in their defences at a very late stage of the proceedings.
Background
The parties to the Ngaanyatjarra Lands determination, including the State, and Commonwealth, agreed that native title within the Reserve had been extinguished by the vesting of the Reserve in the Western Australian Wildlife Authority. A grant agreement was signed between the traditional owners and the State which recognised:
the State’s compensation liability for the extinguishment of native title due to the creation of the Reserve; and
committed to the negotiation of a compensation package.
The compensation package was never finalised and, following a change of government, the State withdrew from the negotiations.
The amended defences
The hearing of the compensation application was due to commence on country in the vicinity of the Reserve in August 2014 and the applicant's legal team had been proofing their witnesses on the basis that the claim should reflect the fact that the native title holders would have held exclusive possession rights, including the right to control access, but for the extinguishment by creation of the Reserve in 1977.
In October 2012 and April 2013, the State and the Commonwealth filed defences acknowledging that exclusive native title rights and interests would have existed if the Reserve had not been created.
On 9 April 2014 the Court granted the State leave to amend its defence. On 21 May 2014, less than three months before the hearing, the State filed a second amended defence which claimed that prior to the Reserve, a right of occupancy of a temporary reserve over part of the Reserve was approved on 9 June 1965 under the Mining Act 1904 (WA) (repealed), and it was possible public works had been constructed on the land. The right of exclusive possession in relation to the balance of the land was not put in issue.
On 23 May 2014, the Commonwealth also filed an amended defence, reserving its position in relation to the effect, if any, of the grant of a right of occupancy.
On 21 July 2014 the State indicated that it would seek to file a third further amended defence which denied the native title holders had exclusive possession rights over the area. The State claimed that a grant of a License to Prospect Crown Lands for Mineral Oil (registered 13 September 1921) had extinguished exclusive native title rights in relation that area and, if the grant was not effective, later historical petroleum tenure grants had that effect. Therefore, the native title in relation to the Reserve was non-exclusive.
On 4 August 2014, the Applicant sought to have these parts of the amended defences struck out.
Should the State and the Attorney be permitted to change their positions and withdraw their admissions?
Barker J considered the Federal Court Rules on amending pleadings: a party must not withdraw an admission that benefits another party unless the party consents or the Court gives leave. His Honour also considered the overriding interests of justice and how that statement of principle is viewed in relation to the overarching purpose of civil practice and procedure provisions: to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The State denied that its defences were formal pleadings and if it were estopped from arguing the existence and significance of the petroleum licenses then a trial would be required, with many witnesses. The Commonwealth said it would deny any liability to pay compensation and relied on the tenures identified by the State. It noted the proceeding would retain its status as “test case” regarding the assessment of compensation for the extinguishment of nonexclusive native title rights.
Barker J stated that he would have been inclined to refuse the State’s application if it did not involve the Attorney/Commonwealth.
The Commonwealth had not proceeded on the same basis as the State at all material times, had not sought to put all the same issues in contest in the proceeding and accepted the State’s tenure searches as accurate at all material times as the State is the custodian of the tenure records. At the same time, the Commonwealth has been put on notice, through the Attorney, that the applicant wishes to claim just terms compensation from it, should the circumstances arise.
Barker J concluded that if the Commonwealth, as intervener, was not entitled to take account of the recent tenure information the prospective case for compensation against the Commonwealth could be determined on an artificial basis. The Court also held that it was not appropriate to bind the State to its admission if the Commonwealth was not.
Not without real misgivings, Barker J allowed the State and the Commonwealth to alter their position, and refused the Applicant’s interlocutory application dated 4 August 2014.
Barker J noted that the Applicant was not prevented from pursuing its compensation application although a finding of nonexclusive native title rights may have implications for the assessment of compensation.
Orders
The Court ordered that the applicant's interlocutory application be dismissed, the respondent was granted leave to file its proposed third amended defence and the matter was listed for directions.