CD (deceased) v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 01 July 2021
• Neutral Citation: [2021] FCA 734
• Court: Federal Court
• Date: 01 July 2021

Federal Court of Australia

CD (deceased) v State of Western Australia [2021] FCA 734

File number:	WAD 242 of 2011
Judgment of:	MCKERRACHER J
Date of judgment:	1 July 2021
Catchwords:	NATIVE TITLE – removal of party pursuant to s 84(8) of the Native Title Act 1993 (Cth) – circumstances in which the power may be exercised – relevant considerations – where the party is a member of the claim group represented by the applicant – where the party is also a respondent – where the applicant has agreed to consent to dismissal of the proceedings following conclusive registration and settlement of the indigenous land use agreements comprising the South West Settlement
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Native Title Act 1993 (Cth) ss 24EA(l)(b), 84(5), 84(8), 84(9), Pt 8A
Cases cited:	Butterworth v Queensland [2010] FCA 325; (2010) 184 FCR 397 Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 Johnson v Native Title Registrar [2014] FCA 142 Kelly (on behalf of Byron Bay Bundjalung People) v NSW Aboriginal Land Council [2001] FCA 1479 Parkin on behalf of the Quandamooka People v State of Queensland [2020] FCR 1132 Starkey v South Australia [2011] FCA 456; (2011) 193 FCR 450 Watson v Western Australia (No 5) [2014] FCA 650
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	26
Date of last submissions:	31 May 2021 (First Respondent) 22 June 2021 (The Fourth Respondent advised she would not be filing any submissions)
Date of hearing:	Determined on the papers
Solicitor for the Applicant:	The Applicant did not file any submissions
Counsel for the First Respondent:	Mr AJ Carr
Solicitor for the First Respondent:	State Solicitor’s Office
Solicitor for the Second to Fourth Respondents:	The Second to Fourth Respondents did not file any submissions

ORDERS

		WAD 242 of 2011
BETWEEN:	CD, NM, TREVOR NETTLE, NIGEL WILKES AND DIANNE WYNNE Applicant
AND:	STATE OF WESTERN AUSTRALIA First Respondent ; THE COMMONWEALTH OF AUSTRALIA Second Respondent ; CITY OF BAYSWATER, CITY OF BELMONT, CITY OF CANNING ABN 80 227 965 466, CITY OF COCKBURN, CITY OF FREMANTLE, CITY OF JOONDALUP, CITY OF MELVILLE, CITY OF NEDLANDS, CITY OF SUBIACO, CITY OF SWAN, CITY OF WANNEROO, SHIRE OF KALAMUNDA, SHIRE OF MUNDARING, SHIRE OF PEPPERMINT GROVE, SHIRE OF SERPENTINE JARRAHDALE, TOWN OF BASSENDEAN, TOWN OF CAMBRIDGE, TOWN OF CLAREMONT, TOWN OF COTTESLOE, TOWN OF EAST FREMANTLE, TOWN OF MOSMAN PARK AND TOWN OF VICTORIA PARK Third Respondents ; BELLA BROPHO Fourth Respondent

order made by:	MCKERRACHER J
DATE OF ORDER:	1 JULY 2021

THE COURT ORDERS THAT:

1. Pursuant to s 84(8) of the Native Title Act 1993 (Cth), the Fourth Respondent, Ms Bella Bropho, be removed as a party to this proceeding.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1. By this interlocutory application dated 28 May 2021, the first respondent (the State) seeks an order pursuant to s 84(8) of the Native Title Act 1993 (Cth) (NTA) that the fourth respondent, Ms Bella Bropho, cease to be a party to these proceedings.

2. An affidavit of Mr Daniel Michael Gorman, affirmed on 28 May 2021 (the Gorman Affidavit) is filed in support of the interlocutory application. The affidavit sets out the grounds of the application together with the relevant facts and circumstances relied upon by the State.

3. Orders were made on 13 April 2021 (13 April Orders) which, among other things, provided a respondent who is the subject of an application for removal the opportunity to file evidence and written submissions in response to the application. In this case, Ms Bropho was permitted until 14 June 2021 (being 17 days after the State’s materials were filed) to file any evidence or submissions. On 21 June 2021, having not received any materials from Ms Bropho, the Court was advised that Ms Bropho did not intend to file any documents in response to the State’s application.

4. For the reasons that follow, it is appropriate that Ms Bropho cease to be a party.

BACKGROUND

5. In the 13 April Orders, the Court ordered, inter alia, that:

1. Each respondent to the proceeding (other than the State of Western Australia and South West Aboriginal Land & Sea Council) must confirm its intention to remain a party to the proceedings by completing a Notice of Address for Service, including an email address (where available), and filing it with or returning it to the Western Australian District Registry of the Court by 14 May 2021.

2. Parties who fail to comply with Order 1 shall cease to be parties to the proceedings.

…

6. On 11 May 2021, Ms Bropho filed a Notice of Address for Service, including an email address. Accordingly, Ms Bropho remains a respondent party to these proceedings.

7. The native title claim the subject of these proceedings was lodged on behalf of the Whadjuk People on 23 June 2011. Ms Bropho was originally joined as a respondent by orders dated 5 July 2012.

8. Since 2009, the State and other parties, including Noongar/Nyoongar/Nyungar/Nyoongah people who are members of the Whadjuk People, have engaged in negotiations resulting in the entry into and registration of six indigenous land use agreements (ILUAs) with the aim of fully and finally resolving current and future native title claims over the South West of Western Australia (an area of over 200,000 square kilometres) (the Settlement Area). This includes any and all compensation liabilities arising from those claims, including the claim the subject of these proceedings, in exchange for a comprehensive package of benefits known as the South West Settlement.

9. As explained in the Gorman Affidavit, one of the six ILUAs, WI2017/015, completely covers the area claimed in this proceeding.

10. On 28 January 2021, Conclusive Registration of all six ILUAs on the Register of Indigenous Land Use Agreements established and maintained under Pt 8A of the NTA (the Register) was achieved. Under s 24EA(l)(b) of the NTA, when the details of an agreement are entered on the Register, an ILUA has effect as if it were a contract among the parties to the agreement, and all other persons holding native title in relation to any of the land or waters in the area covered by the agreement are also bound by the agreement in the same way as the native title group: Kelly (on behalf of Byron Bay Bundjalung People) v NSW Aboriginal Land Council [2001] FCA 1479 per Branson J (at [19]); Johnson v Native Title Registrar [2014] FCA 142 per Rangiah J (at [31]); Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 per Barker J (at [48).

11. Pursuant to cl 6.2 of each of the ILUAs, all native title rights and interests in relation to an agreement area are deemed to be surrendered to the State on a date that is 30 business days after the Settlement Effective Date (the Native Title Resolution Date). The Native Title Resolution Date is 13 April 2021. In order to finalise the determination of native title within the Settlement Area, under cl 6.3 of each ILUA the parties to the six ILUAs have agreed to consent to orders for the making of consent determinations that native title does not exist in relation to the Settlement Area.

12. The representatives of the applicant in these proceedings and...