FEDERAL COURT OF AUSTRALIA

Wharton on behalf of the Kooma People v State of Queensland [2002] FCA 1112

EMMETT J

BRISBANE

28 AUGUST 2002

THE COURT ORDERS THAT:

1.      the applicants in proceeding Q6012/02 be joined as respondents to this proceeding;

2.      any respondents make any application which he/she/it is advised to make under sections 64B or 84C of the Native Title Act 1993 (Cth) by notice of motion returnable for directions before Emmett J on 13 November 2002;

3.      any such notice of motion is to be filed and served, together with any affidavits in support of it, no later than 23 October 2002;

4.      any affidavits intended to be relied on by the applicant in the proceeding are to be filed and served no later than 6 November 2002;

5.      there be referred to the National Native Title Tribunal, for mediation, the question of whether the applicant has authority to bring a claim on behalf of the Kooma People;

6.      the Tribunal furnish to the Court and to the parties, no later than 13 November 2002, a report as to the progress of the mediation referred to in order 5;

7.      the proceeding be listed for directions generally on 13 November 2002 at 9.30 am.

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

THE COURT ORDERS THAT:

1.      the applicant in proceeding QG6031/98 be joined as a respondent to this proceeding;

2.      any respondents make any application which he/she/it is advised to make under sections 64B or 84C of the Native Title Act 1993 (Cth) by notice of motion returnable for directions before Emmett J on 13 November 2002;

3.      any such notice of motion is to be filed and served, together with any affidavits in support of it, no later than 23 October 2002;

4.      any affidavits intended to be relied on by the applicant in the proceeding are to be filed and served no later than 6 November 2002;

5.      there be referred to the National Native Title Tribunal, for mediation, the question of whether the applicant has authority to bring a claim on behalf of the Kooma People;

6.      the Tribunal furnish to the Court and to the parties, no later than 13 November 2002, a report as to the progress of the mediation referred to in order 5;

7.      the proceeding be listed for directions generally on 13 November 2002 at 9.30 am.

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

REASONS FOR JUDGMENT

1                     I have before me today, for directions, proceedings QG6031 of 1998 and Q6012 of 2002.  Each is purportedly brought on behalf of the Kooma People in relation to precisely the same land.  There is, it appears, a dispute between the applicants in each of those proceedings as to who has authority to speak on behalf of the Kooma People.  Proceeding QG6031 of 1998 has progressed to some extent.  Proceeding Q6012 of 2002 is of fairly recent commencement.  It is clearly undesirable that two proceedings remain on foot in relation to the same land purportedly brought on behalf of the same Native Title Claim Group.

2                     It appears to me that the appropriate course, in an endeavour to bring the conflict to a head for resolution, assuming it cannot be resolved by mediation, is to order that the claimant in proceeding QG6031 of 1998 be joined as a respondent in proceeding Q6012 of 2002 and the claimants in proceeding Q6012 of 2002 be joined as respondents in proceeding QG6031 of 1998.

3                     I will then give leave to any respondent in either proceeding to make an application for an order under either s 66B(1) or s 84C(1) of the Native Title Act 1993 (Cth).  In that way the question of which of the claimants has authority to bring a claim on behalf of the Kooma People can be resolved. 

4                     I have been informed by senior counsel for the applicants in Q6012 of 2002 that mediation is unlikely to bring any resolution.  I am reluctant to impose any additional burden on the parties that is unlikely to achieve resolution.  However, I am disposed to the view that a direction for mediation, even if it does not resolve the question of authority, would at least serve to isolate the issues that are likely to be raised for determination by the Court as to the question of authority.  I therefore propose to refer to the Tribunal for mediation the question of who has authority to bring a claim on behalf of the Kooma People in relation to the land that is the subject of the two claims.

Associate:

Dated:              9 September 2002