FEDERAL COURT OF AUSTRALIA

Wharton on behalf of the Kooma People v State of Queensland

[2003] FCA 1398

NATIVE TITLE – native title determination application – application to strike out under s 84C of the Native Title Act 1993 (Cth) – where native title determination application lodged before commencement of the Native Title Amendment Act 1998 (Cth) and amended after such commencement – whether native title determination application must comply with s 61 and s 62 of the Native Title Act 1993 (Cth) as amended by the Native Title Amendment Act 1998 (Cth) – operation of item 21 of Sch 5 of the Native Title Amendment Act 1998 (Cth)

Native Title Act 1993 (Cth) ss 61, 61A, 62, 64, 79A, 84C, 190, 190A, 190B, 190C, 190D, 251B

Native Title Amendment Act 1998 (Cth) Sch 5 items 11, 21, 31

Quall v Risk [2001] FCA 378 considered

Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 cited

WAYNE WHARTON ON BEHALF OF THE KOOMA PEOPLE v STATE OF QUEENSLAND & ORS

QG 6031 OF 1998

EMMETT J

3 DECEMBER 2003

SYDNEY (VIA VIDEO LINK TO BRISBANE)

REASONS FOR JUDGMENT

1                     In 1996, Wayne Morris Wharton (‘Wayne Wharton’) filed an application for a native title determination under the Native Title Act 1993 (Cth) (‘the Act’).  That application has subsequently been amended, and I shall refer to the application, as amended from time to time, as ‘the Wharton Application’. 

2                     With effect from 30 September 1998, the Act was extensively amended by the Native Title Amendment Act 1998 (Cth) (‘the Amendment Act’).  Schedule 5 to the Amendment Act contains application and transitional provisions in relation to amendments made by the Amendment Act, including the way in which the Act, as amended by the Amendment Act, was to operate in relation to native title determination applications that were current at the time of commencement of the Amendment Act.  Under item 31 of Sch 5 to the Amendment Act, the term ‘the [N]ew Act’ means the Act as amended at the commencement of the Amendment Act and ‘the [O]ld Act’ means the Act as in force immediately before the commencement of the Amendment Act.  I shall use those terms in the same way as they are used in Sch 5 to the Amendment Act. 

3                     Una Branfield and others (‘the Branfield Applicants’), under a notice of motion filed on 12 December 2002, seek, inter alia, an order that the Wharton Application be struck out pursuant to s 84C of the New Act.  Section 84C(1) relevantly provides as follows:

‘If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.’

4                     The Branfield Applicants contended that it was necessary for the Wharton Application to comply with s 61 of the New Act and argument on their motion proceeded on that basis.  The substance of that contention was that, in order to comply with s 61 of the New Act, it was necessary for Wayne Wharton to have been authorised by all members of the relevant native title claim group, as provided by s 251B of the New Act, to bring the Wharton Application.  On 18 June 2003, I gave my reasons for concluding that Wayne Wharton was not authorised to bring the Wharton Application by a process that satisfied s 251B(b) of the New Act.  It follows from that conclusion that the Wharton Application does not comply with s 61 of the New Act.  I concluded, therefore, that it should be struck out pursuant to s 84C: see Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790. 

5                     However, before making any orders, I considered that it was appropriate that the parties have the opportunity of considering my conclusions and the reasons for them.  Accordingly, I adjourned the proceeding to 5 August 2003 for directions.  Shortly before that day, a further written submission was made on behalf of Wayne Wharton concerning the applicability of s 61 of the Old Act to the Wharton Application.  For the first time, Wayne Wharton placed reliance on item 21 of Sch 5 to the Amendment Act.  I have now received and heard further submissions from all of the parties desiring to make submissions as to the operation of item 21 in relation to the present proceeding.  Specifically, the State of Queensland supports Wayne Wharton’s contention as to the operation of item 21. 

6                     Item 21 of Sch 5 provides as follows:

‘Section 84C of the [N]ew Act applies where the main application mentioned in that section was made either before or after the commencement of that section.  If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the [O]ld Act.’

7                     The table in s 61(1) of the Old Act set out applications that could be made under Div 1 of Pt 3 of the Old Act to the Native Title Registrar (‘the Registrar’) and the persons who may make each of those applications.  One kind of application set out in the table was a native title determination application.  The persons who could make such an application included:

‘A person or persons claiming to hold the native title either alone or with others’. (Emphasis added).

Section 61(3) of the Old Act provided as follows:

‘An application made by a person or persons claiming to hold native title … with others must describe or otherwise identify those others.  In doing so, it is not necessary to name them or to say how many there are.’ (Emphasis added).

8                     The Amendment Act introduced the concept of a person or persons ‘authorised by all the persons … who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’: see s 61(1) of the New Act.  Those persons are referred to as ‘the native title claim group’.  Section 251B of the New Act determines when, for the purpose of the New Act, all the persons in a native title claim group authorise a person or persons to make an application for a native title determination.  Thus, the scheme of s 61 of the New Act differs from the scheme of s 61 of the Old Act. 

9                     The Branfield Applicants contend that item 21 has no application to the Wharton Application. They say that, where an application is amended after the commencement of the Amendment Act, the provisions of the New Act must be complied with, including s 61 of the New Act.  If not, the application is liable to be struck out pursuant to s 84C.  They rely on a principle said to be derived from the decision of O’Loughlin J in Quall v Risk [2001] FCA 378. 

10                  In Quall, O’Loughlin J was dealing with an application for summary dismissal of a native title determination application.  The application for summary dismissal was based, in the alternative, on O 10 r 7(1)(a) and O 20 r 2(1)(a) of the Federal Court Rules, as well as s 84C(1).  O’Loughlin J concluded (at [65]) that, whilst an original application that was filed before the commencement of the Amendment Act is to be considered against the provisions of s 61 of the Old Act, an application that is amended, after that commencement, ‘by changing the particularity of the claimants’, must comply with the provisions of s 61 of the New Act.  It is desirable to say something more about the decision in Quall.

11                  In Quall, the substantive applicant was Mr Kevin Lance (Tibby) Quall (‘Mr Quall’).  On 29 September 1998, Mr Quall, purporting to act on behalf of the Danggalaba Clan, lodged with the National Native Title Tribunal an application for a determination of native title.  In his original application, Mr Quall claimed that the application was made ‘on behalf of the applicant and others as claimants’.  He then described or identified those others as ‘Danggalaba Clan’.  Following the commencement of the Amendment Act, by the operation of Case 1 in item 6 of Sch 5 to the Amendment Act, Mr Quall’s application was taken to be an application to the Federal Court

12                  On 6 September 1999, Mr Quall filed an amended application for determination of native title.  In the space for stating ‘Capacity in which the applicant claims to be entitled to make the application’, he said that ‘claimants of the native title group’ had authorised him to make the application on behalf of the group.  The native title claim group was then identified as consisting of eight specific individuals. 

13                  On 27 September 1999, Mr Quall filed a second amended application.  The same eight individuals were said to comprise the native title claim group but, in dealing with the capacity in which he claimed to be entitled to make the application, Mr Quall said:

‘Claimants of the native title group who are members of the Danggalaba clan have agreed to be the claimants and to represent the Danggalaba clan.’

On 25 November 1999, Mr Quall filed a third amended application.  It addressed the capacity in which he acted but the language was different again, although the same eight individuals were said to constitute the native title claim group. 

14                  Finally, on 20 March 2001, Mr Quall filed a notice of a motion for further amendment of his application.  In Sch A to that proposed amended application, which is entitled ‘Native Title Claim Group’, the following information appeared:

‘The native title claim group comprises the following descendants of Danggalaba Clan ancestors and constitutes the contemporary Danggalaba Clan according to Aboriginal law and custom.

Kevin Lance (Tibby) Quall (also the applicant) and children

Ronald Keith Quall and children

Diana Deeja Quall and children

Phillip Rupert Quall and children

Yula Williams and children and grandchildren

Mary Raymond and children and grandchildren

Rona Alley and children and grandchildren

Denise Rainger and children (Denise Rainger is the married name of Denise Quall)

Further Information

1.       The Native title claimant group of Schedule A are the Descendants of Danggalaba clan Ancestors and make up the Contemporary Danggalaba Clan

The Danggalaba Clan Contemporary Group is a family group who are the descendants of Deeja Batcho, descendant of Blanchie (Apical Ancestor – Matrilineal).

The families of Deeja Batcho comprises her children of Linda Quall (Deceased, Victor Williams, Yula Williams, Lucy May, Mary Raymond, Rona Alley.

Also of Deeja Batcho are Victor Williams and children, Lucy May and children.  These persons of descent self identify themselves as being Larrakia.’

15                  O’Loughlin J considered (at [63]) that, where an applicant, as a matter of free choice, decided to amend his application ‘by changing the composition of the claimants’, the position is different from the position that a literal reading of item 21 would suggest.  His Honour reached that conclusion by reference to provisions of the New Act and to provisions of Sch 5 to the Amendment Act.  Specifically, his Honour considered (at [65]) that the scheme of the New Act relating to registration of native title claims indicates that an application that is amended ‘by changing the particularity of the claimants’ must comply with the provisions of s 61 of the New Act.

16                  Part 7 of the New Act is concerned with the registration of native title claims.  Under s 185(1), which is contained within Pt 7, there is to be a register to be known as ‘the Register of Native Title Claims’ (‘the Register’).  Under s 190(1) of the New Act, the Registrar must include in the Register details of any claims accepted for registration under s 190A and details of any claims that have been found to satisfy conditions equivalent to those set out in s 190B and s 190C of the New Act.

17                  Section 63 of the New Act provides that, if a claimant application under s 61 is filed in the Federal Court, the Registrar of the Federal Court must give a copy of the application to the Registrar.  Under s 190A(1), if the Registrar is given a copy of a claimant application, the Registrar must, in accordance with s 190A, consider the claim made in the application. 

18                  Under s 190C(3), the Registrar must be satisfied that no person included in the native title claim group for an application (‘the current application’) was a member of the native title claim group for any previous application if, inter alia, the previous application covered the whole or part of the area covered by the current application.  Further, under s 190C(4), the Registrar must be satisfied either that the application has been ‘certified’ or that the applicant is a member of the relevant native title claim group and is authorised to make the application by all the other persons in the native title claim group.

19                  Section 190A(6) provides that the Registrar must accept the claim for registration if the claim satisfies all of the conditions in s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters).  In any other case, the Registrar must not accept the  claim for registration.

20                  Item 11(5) of Sch 5 to the Amendment Act provides that, if the application was made on or after 27 June 1996, the Registrar must consider the claim under s 190A of the New Act as soon as reasonably practicable.  Item 11(9) then provides that, if the claim does not satisfy all of the conditions in s 190B and s 190C of the New Act, the Registrar must remove the details of the claim from the Register and give written notice as required by s 190D(1).  Section 190D(1) provides that, if the Registrar does not accept a claim for registration, the Registrar must give the applicant and the Federal Court written notice of the decision not to accept the claim.  Under item 11(9)(b) the provisions of s 190A to s 190D then apply as if the notice so given were given under s 190D(1).  Under the succeeding provision of s 190D, the applicant may apply to the Federal Court for review of the Registrar’s decision not to accept the claim.

21                  Section 64(4) of the New Act provides that, if an application is amended, the Registrar of the Federal Court, must, as soon as practicable, give a copy of the amended application to the Registrar.  Section 190A(1) also applies where the Registrar is given a copy of a claimant application under s 64(4).  That is to say, the Registrar must, in the accordance with s 190A, consider the claim made in the application.  Specifically, the Registrar must not accept the amended claim for registration unless it satisfies all of the conditions in s 190B and s 190C.  Thus, if an amended application fails the registration test posed by the New Act, the Registrar is obliged to amend the Register to remove any entry relating to the claim made in that application. 

22                  The Branfield Applicants contend that, if an amendment is made to an application, the combined effect of the provisions described is that the applicant must lodge with the Court a fresh application that complies with all the requirements of s 61 and s 62 of the New Act.  They say that that consequence flows even though the application is nominally an application to amend an application that had been filed prior to the commencement of the Amendment Act.

23                  If an application were made under s 84C to strike out a native title determination application filed prior to the commencement of the Amendment Act, item 21 of Sch 5 makes quite clear that the strike out application would fail if the main application complied with s 61 of the Old Act, even if it did not comply with s 61 of the New Act.  That is so whether or not the application would pass the registration test.  There is no reason to conclude that, just because an amendment were made after the commencement of the Amendment Act, the application would no longer have the protection clearly intended by item 21.

24                  Item 21 of Sch 5 is unequivocal in its terms.  It refers to ‘the main application’ mentioned in s 84C.  The use of the term ‘main application’ is to distinguish an application made under s 84C(1) itself.  Thus, s 84C(2) provides that the Court must, before any further proceedings take place in relation to the main application, consider the application made under s 84C(1). 

25                  Section 84C is contained within Div 1A of Pt 4 of the New Act.  According to s 79A, Pt 4 contains the rules for processing Federal Court applications, and making determinations, relating to native title.  Specifically, s 80 provides that the provisions of Pt 4 apply in proceedings in relation to applications filed in the Federal Court that relate to native title.  Thus, when s 84C(1) provides that, if an application does not comply with ss 61, 61A or 62, a party to the proceeding may, at any time, apply to strike out the application, the reference to ‘an application’ must be taken to be a reference to an application filed in the Federal Court that relates to native title. 

26                  Accordingly, when item 21 of Sch 5 provides that s 84C applies whether ‘the main application’ was made before or after the commencement of s 84C, it refers to an application filed in the Court that relates to native title.  The second sentence of item 21 is unambiguous in providing that, if that application was made before the commencement of the Amendment Act, the references in s 84C to s 61 or s 62 are references to s 61 or s 62 of the Old Act.

27                  An amendment to the main application does not give rise to a new application.  The scheme of the Act recognises that applications may be amended.  There is nothing to suggest that, when an application is amended, it should thereupon be treated as a new application so as to lose the protection afforded by item 21.

28                  Quite anomalous consequences could flow from the construction contended for by the Branfield Applicants.  Any amendment made, after the commencement of the Amendment Act, to a native title determination application filed prior to the commencement of the Amendment Act, would lead to the removal of the protection implicit in item 21.  Even if the amendment involved the excision of part of the claim area, the consequences would be that a strike out application could immediately be brought because the application as amended did not comply with s 61 of the New Act.  It is difficult to see any justification for reading such a qualification into the clear and unambiguous words of item 21.  I do not consider that the provisions of the New Act and item 11 concerning registrations requires a reading of item 21 that departs from its clear and unambiguous terms.

29                  O’Loughlin J in Quall referred (at [63]) to an amendment involving a change in ‘the composition of the claimants’.  It is not entirely clear what his Honour meant by the reference to an amendment made ‘by changing the composition of the claimants’.  It may be that his Honour intended to refer to a change in the membership of the claimant group, as distinct from further particularisation of the claimant group.  There may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the Old Act.  If there were an amendment to that effect, the application as amended might fairly be characterised as a fresh application.  It is not apparent to what extent Quall involved a change in substance as to the persons on whose behalf the claim was being made. 

30                  Be that as it may, however, in the present case, there has not been a change in substance in the group on whose behalf the Wharton application is brought.  Following amendment filed on 2 October 1996, the Wharton Application was expressed to be made by Wayne Wharton ‘on behalf of the applicant … and all Kooma People’.  In response to the requirement of s 61(3) of the Old Act to describe or identify who were ‘the others’ on whose behalf the application is made, the following appeared:

‘The application is made on behalf of the applicant Wayne Morris Wharton and others identified as Kooma [P]eople.’

Later, the application contained the following statement:

‘The applicant represents all of the members of the Kooma people for the purpose of this application.’

31                  In his amended application lodged on 28 May 1999, Wayne Wharton described the native title claim group in the following terms:

‘This native [title] claim is made on behalf of the following family groups and their descendants:

·        Lucy Sheridan … and her descendants;

·        Kitty of Bollon … and her descendants;

·        Coombra Jack and Fanny … and their descendants;

·        Peter of the Maranoa … and Angelina and their descendants;

·        Susan Mitchell … and her descendants;

·        Maggie of Bendee Downs … and her descendants;

·        Mary Button of Murra Murra … and her descendants’.

32                  No mention is made at that point to ‘the Kooma People’.  However, in Sch F of the amended application, which requires a general description of native title rights and interests claimed, there are many references to ‘the Kooma’.  Further references to ‘the Kooma’ appear in Sch L, which deals with tenure and land use issues.  Similarly, in Sch M, which deals with traditional physical connection, there are many references to ‘the Kooma’.  There can be no doubt that the amended application claims native title on behalf of the Kooma People, whoever they may be. 

33                  Thus, while the amended application filed on 28 May 1999 describes, with greater particularity, the native title claim group that had previously been described in general terms as ‘the Kooma People’, it is clear that that is meant to describe the Kooma People in a way that was intended to comply with s 61(1) of the New Act.  While the amended application identifies the Kooma people with considerably more certainty, it is clear that it was not, considered objectively, intended to change the persons or group on behalf of whom the application was brought.

34                  Notwithstanding the conclusions that I expressed in my reasons of 18 June 2003, I consider that item 21 of Sch 5 to the Amendment Act operates in relation to the Wharton Application, such that s 84C is to be applied on the basis that the Wharton Application need comply only with s 61 and s 62 of the Old Act.  It is common ground that the Wharton Application does not fail to comply with s 61 and s 62 of the Old Act. 

35                  Of course, if there were a failure to comply with s 61A, that might be a different matter altogether.  Section 61A imposes restrictions in making certain applications.  Thus:

• no native title determination application may be made in respect of an area if there is an approved determination of native title in respect of the area;
• a claimant application must not be made covering previous exclusive possession act areas;

·        claimant applications must not claim certain rights and interests in previous non-exclusive possession act areas.

That is to say, an application filed prior to the commencement of the Amendment Act would not be saved if it was prohibited by any of those provisions.  However, there is no suggestion that the Wharton Application does not comply with s 61A. 

36                  It follows from the conclusions reached above that the application by the Branfield Applicants to strike out the Wharton Application should be dismissed.  However, before making any orders, I consider it is appropriate, in the circumstances, that the parties have the opportunity of considering my conclusions and the reasons for them.

Associate:

Dated:              3 December 2003