Background
The former township of Wittenoom lies near areas where asbestos mining occurred. Parts of the township, mine and surrounding land became contaminated with asbestos, although the extent of contamination remains disputed. The Wittenoom Closure Act 2022 (WA) closed the former townsite and provided for the State of Western Australia to compulsorily acquire the area defined by the legislation as the “Wittenoom land.”
Banjima Native Title Aboriginal Corporation RNTBC commenced a representative proceeding against the State, claiming to be the registered native title body corporate and trustee for native title rights held for the benefit of the Banjima people in affected land. It alleged that the presence and spread of blue asbestos interfered with group members’ enjoyment or exercise of native title rights and sought declarations, abatement orders and damages in nuisance. At an early case-management stage, Banjima NTAC sought to amend its pleading so it would pursue the same claim as trustee for the native title holders rather than as a representative applicant under Part IVA of the Federal Court of Australia Act 1976 (Cth).
The Court’s Holding
Justice Colvin granted leave for the amendments and, under s 33N(1), ordered on the Court’s own motion that the proceeding no longer continue as a Part IVA representative proceeding. Applying the two-step approach to s 33N, the Court found that all relief sought could be pursued by Banjima NTAC acting as trustee and that ending the representative structure was appropriate given the claims’ focus on relief addressing alleged ongoing contamination of land subject to determined native title rights and interests.
The Court also held that the change was in the interests of justice. The application was unopposed, made before notice had been given to group members or agreements made with them, and would not alter the nature or extent of the pleaded claims. Counsel confirmed that no individual damages were sought beyond damages for interference with native title rights. The change removed a procedural dispute, including the State’s objection concerning claims predating the Part IVA regime, while simplifying the proceeding without requiring conditions.
Key Takeaways
- A court may discontinue the Part IVA status of a proceeding on its own motion when a non-representative proceeding can obtain all the relief sought and the change is in the interests of justice.
- Banjima NTAC was permitted to advance the nuisance claim as trustee for native title holders without materially changing the pleaded relief.
- The proceeding remains concerned with the alleged interference with native title rights caused by blue-asbestos contamination; the Court did not determine the merits of those allegations.
Why It Matters
The decision illustrates how a registered native title body corporate claiming to act as trustee may pursue collective relief concerning native title rights without using the federal class-action procedure. It also shows that an early, unopposed restructuring may be approved where beneficiaries lose no pleaded remedy, the respondent suffers no prejudice and the change simplifies future case management.