Federal Court of Australia

Wharton on behalf of the Kooma People v State of Queensland (No 2) [2021] FCA 191

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended interlocutory application filed on 19 June 2020 be dismissed.

2.    The applicant’s application for a determination of compensation filed on 18 December 2019 be struck out.

3.    The respondents each file and serve any submissions as to costs (not exceeding five pages) by 4.30 pm on 18 March 2021.

4.    The applicant file and serve any submissions as to costs (not exceeding five pages) by 4.30 pm on 25 March 2021.

5.    The respondents each file and serve any submissions as to costs in reply (not exceeding one page) by 4.30 pm on 29 March 2021.

6.    The question of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The principal proceeding is an application for a determination of compensation made on behalf of the Kooma People.

2    The State of Queensland has filed an interlocutory application seeking orders that the proceeding be struck out or summarily dismissed. The basis of the interlocutory application is that the compensation application fails to comply with s 61(5)(c) of the Native Title Act 1993 (Cth) (the NTA), which requires that the application contain such information as is prescribed.

3    In response, the applicant relies on an amended interlocutory application seeking leave to amend the compensation application. The interlocutory application also seeks that the Court make a request, under s 83A of the NTA, that the State Minister conduct searches of registers and other records, but that issue has been adjourned.

4    The issues before the Court are whether the applicant should have leave to amend the compensation application and, if not, whether the application should be struck out.

5    The issues involved in this case are almost identical to those considered in Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190 (Bigambul). It would be unnecessarily repetitious to rehearse the relevant statutory provisions, the authorities, the submissions and my reasoning. The two judgments should be read together.

6    In this case, the applicant filed the compensation application (the Original Application) in the prescribed form, Form 4, on 18 December 2019. The Original Application states that it is made on behalf of the Kooma People, who are descendants of one or more of eight named apical ancestors.

7    The Court has previously made a determination of native title in favour of the Kooma People in Weatherall on behalf of the Kooma People #4 Part A v State of Queensland [2014] FCA 662 (the Kooma #4 Determination).

8    Schedule B of Form 4 requires information identifying the boundaries of the “area covered by the application”, and any areas within those boundaries that are “not covered by the application”. The Original Application attaches an “Attachment B”, which states that the compensation claim area comprises all of the land, rivers, creeks and waterways contained within the external boundary of the Kooma #4 Determination area, other than areas subject to exclusive native title.

9    Schedule C of Form 4 requires a map showing the boundaries of the area covered by the application. The map attached to the Original Application shows the external boundaries of the Kooma #4 Determination area and also delineates the areas of exclusive native title that are excluded.

10    Schedule I of Form 4 requires details of the “act” which it is claimed extinguished or affected native title rights and interests for which compensation is claimed. The information provided by the applicant in Sch I of the Original Application is as follows:

As per the determination decision of Weatherall on behalf of Kooma People #4 Part A v State of Queensland [2014] FCA 662 (“the Kooma # 4 Determination”).

Updates to the determination will be provided, but due to the size and scale of this claim for compensation, including the cultural and spiritual loss in addition to the economic loss, this information will be collated over an extended period of time, which will be determined in due course and will be produced at a later date once expert and lay evidence has been provided.

The expert and lay evidence is not limited to the following experts but will include;

1.    Valuation Expert;

2.    Town Planning Expert;

3.    Anthropological Expert;

4.    Archaeological Expert; and

5.    Lay evidence from Elders from the Kooma People.

We rely on, among other things, the extinguishing acts as identified in Part 15, Division 2 of the Native Title Act 1993, the Elders of Kooma, historical documentation, and yet to be determined expert evidence.

More information can be provided and labelled as "Attachment I"

11    The Original Application does not attach any “Attachment I”. It may be seen that Sch I does not identify any act claimed to have extinguished or affected native title rights and interests.

12    The proposed amendments would delete the material in Sch I of the Original Application and instead attach an “Attachment I”, stating as follows:

The Applicant has conducted, amongst other searches, extensive searches of official title registers to identify the act(s) in issue. The results of those searches and details of the act(s) that extinguished and/or affected native title rights and interests for which compensation is claimed can be found in the spreadsheet below, which has been split into the following sections:

1.    Identified Compensable Lot(s) and Act(s) within the claim area.

2.    Crown reserve land, unallocated land and land subject to public works within the claim area.

a.    It is noted that further disclosure with respect to these parcels of land is required in order to determine if they are subject to extinguishing acts.

3.    Details of lots within the claim area where no searches were available.

The Applicant is not in a position to know the full extent of some of the acts, that have extinguished and/or affected native title rights and interest (sic) for which compensation is claimed and further investigation, searches and/or disclosure from the State of Queensland may be required.

…

13    The proposed Attachment I contains a spreadsheet that sets out a number of acts that are said to be extinguishing acts. The spreadsheet describes the nature of each act, the date of the act, the government responsible and a related lot or plan identification number.

14    The State submits that the Original Application does not comply with s 61(5)(c) of the NTA as it does not contain prescribed information. In particular, it fails to identify any “act” alleged to have extinguished or otherwise affected native title rights and interests, and any “area covered by the application”.

15    The State opposes the application for leave to amend on the basis that the proposed amendments would offend s 64(1) of the NTA, which provides that an amendment of an application must not result in the inclusion of any area of land or waters, “that was not covered by the original application”. The State argues that as the Original Application fails to identify any “act” in Sch I, it fails to identify any “area covered by the application” in Schs B and C. The State contends that amendment to identify particular acts would operate to include areas that are not covered by the Original Application, contrary to s 64(1).

16    In Bigambul, I considered the same arguments. I held that Sch I of Form 4 requires identification of an act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed. As the original compensation application in that case did not identify any act, the application did not comply with the requirements of the prescribed form and therefore failed to comply with s 61(5)(c) of the NTA.

17    In Bigambul, I held that the requirement of Sch B of Form 4 for information identifying the boundaries of “the area covered by the application” requires the identification of the area in which it is alleged that the act identified in Sch I extinguished or otherwise affected native title rights and interests. As the original compensation application in that case did not identify any act, it failed to identify any area in which it was alleged that an act had affected native title rights and interests. Therefore, the application did not comply with the requirements of the prescribed form in that respect and failed to comply with s 61(5)(c) of the NTA.

18    In Bigambul, I also held that the application for leave to amend the compensation application could not be allowed. The proposed amendments would identify particular acts that would, for the first time, identify areas in which it is alleged that native title rights and interests had been extinguished or otherwise affected. Section 64(1) of the NTA prohibits amendments that would result in the inclusion of any area not covered by the original application, so the amendments could not be permitted. As the compensation application failed to comply with s 61(5)(c), it was struck out.

19    The position is the same in the present case. The Original Application does not identify any act claimed to have extinguished or affected native title rights and interests. Therefore, the Original Application fails to identify any area in which it is alleged that any identified act has extinguished or otherwise affected native title rights and interests. The proposed amendments would include, for the first time, particular acts, and therefore include areas not covered by the Original Application. Such amendments are prohibited under s 64(1) of the NTA.

20    The applicant’s amended interlocutory application cannot succeed to the extent that it seeks leave to amend the Original Application. Further, the amended interlocutory application, to the extent it relies upon s 83A of the NTA, is otiose, as identification of further compensable acts could not save the Original Application. The amended interlocutory application must be dismissed.

21    The Original Application does not comply with s 61(5)(c) of the NTA. It must be struck out pursuant to s 84C(1) of the NTA.

Associate:    

Dated:    11 March 2021

SCHEDULE OF PARTIES