FEDERAL COURT OF AUSTRALIA

Munn v State of Queensland
[2002] FCA 486

ROBERT JOHN MUNN FOR AND ON BEHALF OF THE GUNGGARI PEOPLE v STATE OF QUEENSLAND & ORS

QG 6019 OF 1998

ROBERT JOHN  MUNN FOR AND ON BEHALF OF THE GUNGARRI PEOPLE v

STATE OF QUEENSLAND

Q 6027 OF 2001

EMMETT J

9 APRIL 2002

SYDNEY

QG 6019 OF 1998

THE COURT ORDERS THAT:

1.   Una Branfield (Pondjyfljdyu), Bill Chapman, Clarence Colliss, Angus Mitchell, Ross Mitchell, Aileen Orcher, Mick Speedy and Grace Weatherall be joined as a party to these proceedings;

2.   the notice of motion dated 18 March 2002 be otherwise dismissed; and

3.  the matter be stood over for hearing directions at 9.30am 30 April 2002 in Brisbane.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Q 6027 OF 2001

THE COURT ORDERS THAT:

1.   Una Branfield (Pondjyfljdyu), Bill Chapman, Clarence Colliss, Angus Mitchell, Ross Mitchell, Aileen Orcher, Mick Speedy and Grace Weatherall be joined as a party to these proceedings;

2.   the notice of motion dated 18 March 2002 be otherwise dismissed; and

3.  the matter be stood over for hearing directions at 9.30am 30 April 2002 in Brisbane.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Q 6027 OF 2001

REASONS FOR JUDGMENT

1                     I have before me applications in two separate proceedings for joinder of individuals as respondents.  In proceeding QG6019 of 1998 there are two motions: one filed on 18 March 2002 on behalf of Una Brandfield and others (“the Brandfield Respondents”); and one filed on 15 February 2002 on behalf of Wayne Norton.  In proceeding Q 6027 of 2001 I have another motion, also filed on 18 March 2002, for the joinder of the Brandfield Respondents.  Mr Wharton is already a respondent in proceeding Q 6027 of 2001.  None of the current parties to either of the proceedings, other than the moving parties, supports or opposes the motions. 

2                     The only issue of contention concerns the capacity in which Mr Wharton would be joined as a respondent to proceeding QG6019 of 1999.  In his motion, filed on 15 February 2002, Mr Wharton sought to be joined as a representative of the Kooma people.  His application was supported by an affidavit sworn on 15 February 2002 intended to establish his authority for seeking to be joined on behalf of the Kooma people. 

3                     The applications are brought pursuant to s 84(5) of the Native Title Act 1993 (Cth), which provides that the Federal Court may, at any time, join any person as a party to a proceeding if the Court is satisfied that the person’s interests may be affected by a determination in the proceeding.  The interest claimed by Mr Wharton and by the Brandfield Respondents is that they, as members of the Kooma people, have native title interests in the land which is the subject of the relevant proceeding.

4                     Mr Wharton seeks to be joined in a representative capacity so that he will be in a position to oppose certain aspects of the claim by the Gunggari people on behalf of the Kooma people.  There are other claims presently before the Court on behalf of the Kooma people although none of the present applicants for joinder is an applicant in those proceedings. 

5                     My attention has been drawn to the decision of Olney J in Yarmirr v The Northern Territory of Australia and ors (Federal Court of Australia 4 April 1997, unreported).  His Honour, in that case, considered an application for joinder based on an interest as the holder of a native title right and expressed the view that, from the very nature of the claimed native title right that it was said may be affected by a determination in that proceeding, if that right was to be the subject of consideration by the Court, it would be necessary for the Court first to make a determination in respect of that right. 

6                     However, s 213(1) of the Act provides that if, for the purpose of any matter or proceeding before the Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures contained in the Act.  The procedures in question do not admit of an application for a determination of native title being made otherwise than pursuant to s 13 and Part 3 of the Act.  His Honour considered that, in the absence of an application pursuant to s 61 and the lodging of such an application with the Court pursuant to s 74, the Court had no jurisdiction to make a determination in respect of claimed native title rights.  Accordingly, an interest in the nature of native title, and nothing more, was not sufficient warrant for joinder pursuant to s 84(5). 

7                     Section 225 of the Act provides as follows:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the

 determination area ) of land or waters and, if it does exist, a determination of:

          (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

          (b) the nature and extent of the native title rights and interests in relation to the determination area; and

          (c) the nature and extent of any other interests in relation to the determination area; and

          (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

          (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Thus, in a sense, a determination of native title is a determination in rem.  In recognition of the nature of a native title determination, s 67 directs that, if two or more proceedings before the court relate to native title determination applications that cover, in whole or in part, the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. 

8                     The clear intention is that a determination should be a final resolution, once and for all, of the extent of native title in relation to a particular parcel of land.  However, it does not necessarily follow that a native title interest would not constitute interests that might be affected by a determination made in a proceeding under the Act.  The holder of a native title interest may have sufficient interest to warrant participation in a proceeding, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question.  I would therefore with respect decline to follow any judgment which indicates that a claim to native title is not of itself sufficient interest to justify joinder under s 84(5).  However, in the absence of any opposition, it is not essential for me to resolve that question. 

9                     Even so, I do not consider that it is appropriate to join any person as a respondent in a representative capacity.  An application may be made in a representative capacity.  The Act provides accordingly.  In this regard s 84(5A) may have some relevance.  Section 84(5A) provides:

“If:

(a) a person wants to become a party to the proceedings; and

(b) the Federal Court is satisfied that the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application;

the Court:

(c) may make appropriate orders to ensure that the person's interests are properly represented in the proceedings; but

(d) need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use.”

10                  Certainly s 84(5A) is limited to persons whose interests are affected simply as having a public right of access.  Nevertheless s 84(5A) recognises that it may be appropriate to limit the number of persons asserting similar claims, if the Court is satisfied that the interests of those persons will be properly represented by another person who is a party.  That, however, is not to say that a person is a respondent in a representative capacity. 

11                  Since there is no opposition to the joinder of Mr Wharton as an individual respondent, I consider that it is appropriate to make an order that he be joined as a party, but not to represent any other persons.  Similarly, since there is no opposition to the joinder of the Brandfield Respondents, I consider that it is appropriate that they be joined.  The Brandfield Respondents and Mr Wharton all make claims that they have interests as members of the Kooma people.  To that extent I consider that they have an interest that would justify their being parties to the proceeding. 

12                  Accordingly in proceeding  Q 6027 of 2001 I will make an order in terms of paragraph 2 of the notion of motion filed on 18 March 2002.  In proceeding QG 6019 of 1998 I make an order in terms of paragraph 2 of the notice of motion filed in that proceeding on 18 March 2002.  In proceeding QG 6019 of 1998 I will order that Wayne Wharton be joined as a party to the proceeding.  I will order that the notices of motion be otherwise dismissed. 

13                  In the light of the information given by senior counsel that fresh proceedings have been commenced on behalf of the Kooma people in the recent past, making a claim to part of the land that is the subject of proceeding QG 6019 of 1998, it is appropriate that the parties be given some further time to consider their attitude to the further conduct of these proceedings.  As the parties are aware, there was a proposal, almost given effect to last year, for consent declarations to be made in relation to the land that is the subject of proceeding QG 6019 of 1998 (“the Part A land”). It may be that some procedure can be devised that will enable a consent order to be made in relation to part of the Part A land.  However, the parties have not yet had the opportunity of considering their attitude to such a proposal. 

14                  Accordingly, I will fix both proceedings for directions generally on 30 April 2002 at 9.30am in Brisbane.  I will give any of the parties leave to file any notice of motion returnable before me on that day for directions or other orders relating to the further disposition of the proceedings.

Associate:

Dated:              18 April 2002