FEDERAL COURT OF AUSTRALIA

Watson v State of Western Australia [2013] FCA 238

THE COURT ORDERS THAT:

1.    The service of the interlocutory application dated 25 October 2012, filed by Oil Basins Limited, and the supporting documents on any other person other than the State of Western Australia and the applicants be dispensed with.

2.    Oil Basins Limited be joined as a respondent in the proceeding.

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

REASONS FOR JUDGMENT

1    The following are the edited ex tempore reasons given in this matter on 15 February 2013.

2    Oil Basins Limited (Oil Basins) filed an interlocutory application on 25 October 2012 to be joined as a party to these proceedings. Its application is supported by affidavits of Sally Jane Carlin sworn on 25 October 2012 and 18 January 2013 respectively. The application is opposed by the applicant, the Nyikina Mangala People. Their opposition is supported by the affidavit of Jacki Lynn Cole sworn 14 February 2013.

3    Section 84(5) of the Native Title Act 1993 Cth (Native Title Act) provides as follows:

[t]he Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

4    I had occasion to consider that provision in the case of Barunga v State of Western Australia (No 2) [2011] FCA 755, and relevantly, at [163] and [164], stated:

[163]    The phrase “and it is in the interests of justice” was added by way of the Native Title Amendment Act 2007 (Cth) (NT Amendment Act). However, that amendment applies only in respect of proceedings commenced on or after 15 April 2007. These proceedings commenced before that date. Accordingly, the relevant provision governing these applications is s 84(5) as it stood before that date:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that person’s interests may be affected by a determination in the proceedings.

However, the addition of these words adds nothing to the matters that the Court must consider in these applications.

[164]    Thus, the following elements must be considered when making a decision under s 84(5):

(a)    Whether the person has an interest;

(b)    Whether the interest may be affected by a determination in the proceedings; and

(c)    Whether, in any event, in the exercise of its discretion the Court should join the person as a party.

5    This view of that section, as it relates to a matter such as this, was followed by Marshall J in Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1003. The substantive applicant (the applicant) now concedes, correctly, in my opinion, that Oil Basins has a relevant interest which may be affected by a determination in the substantive proceedings. The only issue, then, for resolution is whether, for the purposes of s 84(5) as it relates to this proceeding, the Court should, in its discretion, make a joinder order.

6    It would, in my opinion, ordinarily follow, where such an interest is established or conceded, that a joinder order will be made. Justice will ordinarily require that a party with a relevant interest be permitted to participate in the proceeding to protect that interest. Nevertheless, there is a residual discretion in the court; should there be, for example, significant prejudice to the other party or parties or any of them, the Court may refuse to grant a joinder application.

7    Oil Basins’ interest is, as the preferred applicant, together with Backreef Oil Pty Ltd (Backreef Oil), for a petroleum exploration permit 5/07- 8EP (the permit), under the Petroleum and Geothermal Energy Resources Act 1967 (WA), which affects land and waters within the Nyikina Mangala claim area. This is the basis for its application for joinder. Oil Basins and Backreef Oil were selected as the preferred applicant for the permit as far back as December 2007.

8    Those two companies jointly engaged in negotiations with the applicant under the Native Title Act’s right to negotiate procedure from early 2008 until May 2012, including a mediation conducted by the National Native Title Tribunal (the Tribunal) from May 2011 to May 2012. As these negotiations did not result in an agreement, Oil Basins and Backreef Oil initiated an application under s 35 of the Native Title Act on 19 May 2012.

9    The Tribunal very recently handed down its determination, which is that the future act, namely the grant of the permit, may be done subject to certain conditions: Backreef Oil Pty Ltd and Oil Basins/John Watson and Ors on behalf of the Nyikina and Mangala/Western Australia [2012] NNTTA 98. This fact in itself, in my view, makes out the relevant interest. The original Nyikina Mangala native title claim was first lodged with the NNTT. Upon the commencement of the Native Title Amendment Act 1998 (Cth), on 30 September 1998, the application became a proceeding in this Court and was allocated Federal Court file number WAG 6099/98. The proceedings, I accept, are at a relatively advanced stage. Active mediation has been going on for many years between the applicant and the first respondent, the State of Western Australia.

10    On 4 October 2012, Barker J listed the hearing of the proceeding to commence on-country from 2 July 2013. The proceeding has been listed before me. Programming orders, I am told, are soon to be entered. On 16 November 2012, the applicant filed an extensive anthropological report by Dr Kingsley Palmer.

11    The applicant submit that the applicant for joinder has engaged in substantial delay in bringing its application. As I mentioned earlier, the application was filed in October of last year. Oil Basins sought to have the hearing of that application heard in January, but for reasons advanced by the applicant, the application was not listed for hearing until today. In any event, it is always a question in matters of this kind as to when the interest necessary to satisfy the statutory requirement arises. There is no fine line, and indeed, it was only in the course of the hearing today that counsel for the applicant abandoned the opposition on the ground that there was no relevant interest and, in effect, conceded that the determination by the Tribunal was sufficient to establish that interest. That, as I have already said, is a proper concession. In any event, delay in itself, even were I to find delay, and I do not, is not of itself, in my opinion, a reason to exercise a discretion against the grant of a joinder application. The matter of delay is intimately tied up with the question of prejudice, and I will now turn to that.

12    The trial of the substantive application, as I have said, is due to commence on 2 July 2013. Counsel for Oil Basins submits that in her experience, which is not inconsiderable, parties such as Oil Basins take very little part in the proceeding and that such part as they play, does not significantly add to the length or cost of a trial. Counsel for the applicant did not agree with this assessment.

13    Further, counsel for Oil Basins has, during the hearing of this application, seen the proposed programming orders and has informed the Court that she is confident that her client can meet the requirements of these. I am not satisfied, on the material before me, that the applicant has made out any substantial prejudice. Moreover, should the views expressed by Oil Basins’ counsel transpire to be incorrect and that there will be a significant impact on the proceeding, for example, the need for an application for an adjournment to be made, then it would be open to the Court, upon such an application, to consider removing Oil Basins as a party.

14    This should not be interpreted as a prejudgement of what orders might be made by the Court should such events unfold. It is not uncommon for the length of a trial to be extended for a few days for various reasons. I would not regard such an extension of the trial period as relevant prejudice to the applicant.

15    For these reasons, there will be orders as asked in Oil Basins’ interlocutory application dated 25 October 2012.

Associate:

Dated:    26 March 2013