What is the role of respondents in native title proceedings?

In a recent decision, the Federal Court of Australia limited the involvement of a respondent in native title proceedings and made an order for indemnity costs against the respondent for costs and losses incurred by the applicant as a result of the respondent’s conduct.  Any person whose rights and interests may be affected by a determination of native title is still entitled to become a party to native title proceedings however this decision highlights the importance of respondents involving themselves in proceedings only to the extent of their actual interests.  Failure to do so could result in costs orders being made in what is usually a no-costs jurisdiction.

Watson v State of Western Australia (No. 3) [2014] FCA 127

The applicant in the native title proceedings sought orders from the Court to limit the involvement of Oil Basins Ltd in the proceedings, and for costs.  The Court considered the conduct of Oil Basins Ltd, including:

• it joined the proceedings in November 2012, approximately 14 years after the claim was lodged and when negotiations for a consent determination where relatively well advanced;
• it was advised by the State that the State intended to agree to a consent determination because, in the opinion of senior counsel, it was likely that the applicant would succeed in a contested hearing;
• it changed its position in the proceedings on a number of occasions without evidence or adequate explanation to support these changes, and on each occasion caused the other parties to incur costs, in particular the applicant who was required to prepare for a costly on-country hearing;
• the State had taken an active interest in the proceedings, was involved in negotiations and mediation over many years, had carefully analysed and assessed the applicant’s connection material, and was acting in the capacity of parens patriae to look after the interests of the community generally; and
• all other parties to the proceedings had agreed to a consent determination, and the terms of the consent determination recognised Oil Basins Ltd’s interests in the determination area.

The Court identified in its reasons that the geographic extent of a respondent’s interest may be relevant to the extent to which it can properly involve itself in proceedings, in particular in relation to connection.  Furthermore, if a respondent does intend to contest an applicant’s connection case, it should have some anthropological evidence to support its position.  Merely putting the applicant’s anthropologists to the test in cross-examination may not be appropriate, particularly if all other parties accept connection.

What does this mean for you?

Respondents to native title claims are not prevented by this decision from participating in native title proceedings or adequately protecting their interests which may be affected by a determination of native title.  However, this decision highlights the obligation of all parties to act reasonably and to have a real or adequate basis for putting connection in issue when all other parties have agreed in principle to a consent determination.