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

FEDERAL COURT OF AUSTRALIA

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

NATIVE TITLE – native title determination application – authorisation – whether process of decision-making agreed to or adopted by native title claim group – whether application authorised

Native Title Act 1993 (Cth) ss 61, 62, 63, 66, 84C, 251B, Table A items 6, 36, 43 Aboriginal Councils and Associations Act 1976 (Cth)

Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land & Water Conservation for the State of New South Wales [2002] FCA 1517 cited Ridgeway on behalf of the Worimi People, in the matter of Russell v Bissett-Ridgeway [2001] FCA 848 cited WAYNE WHARTON ON BEHALF OF THE KOOMA PEOPLE v STATE OF QUEENSLAND & ORS QG 6031 OF 1998 EMMETT J 18 JUNE 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY QG 6031 OF 1998

BETWEEN: WAYNE WHARTON ON BEHALF OF THE KOOMA PEOPLE

APPLICANT

AND: STATE OF QUEENSLAND & ORS

RESPONDENTS

JUDGE: EMMETT J

DATE OF ORDER: 18 JUNE 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the motion and the proceeding be stood over to 5 August 2003 before Emmett J. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY QG 6031 OF 1998

BETWEEN: WAYNE WHARTON ON BEHALF OF THE KOOMA PEOPLE

APPLICANT

AND: STATE OF QUEENSLAND & ORS

RESPONDENTS

JUDGE: EMMETT J

DATE: 18 JUNE 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me an application under s 84C of the Native Title Act 1993 (Cth) ('the Act') to strike out a native title determination application made under the Act by Wayne Morris Wharton ('Wayne Wharton'). The present application appears to arise out of a sterile and unfortunate dispute among members of a native title claim group as to who should have the conduct of an application for a native title determination under the Act on behalf of the Kooma People in respect of land in the vicinity of Cunnamulla in south-west Queensland. 2 The application arose as a consequence of the amendments made to the Act in 1998. I shall refer to the Act prior to the amendment as the 'Old Act', and to the Act following the amendment as the 'New Act'. 3 Under s 61(1) of the Old Act, a native title determination application could be made by: · a person or persons claiming to hold the native title either alone or with others; · a person who holds an interest in relation to the whole of the area in relation to which the determination is sought; · the Commonwealth Minister (as defined); · the State Minister (as defined). 4 Under s 62(1) of the Old Act, a native title determination application by a person or persons claiming to hold the native title in relation to an area was required to comply with the requirements of that section. Section 62(1)(d) required that the application state the name and address of the person who is to be taken to be the claimant, who then became the registered native title claimant under the Act. Section 63(1) then provided that, subject to exceptions not presently relevant, if the requirements of s 62 were complied with, the Registrar of the National Native Title Tribunal ('the Registrar') must accept the application. 5 On 4 June 1996, an application was lodged under the Old Act with the Registrar. The applicant named was Kooma Aboriginal Corporation for Land ('Kooma Corporation'). However, the form of the application stated that the application was made 'on behalf of the applicant Wayne Morris Wharton and others identified as Kooma People'. On 2 October 1996, an amended application was lodged, apparently in order to comply with s 62. The amended application named the applicant as 'Wayne Morris Wharton on behalf of all Kooma People'. It also stated that it was lodged 'on behalf of the applicant Wayne Morris Wharton and others identified as Kooma People'. 6 Under s 66(1) of the Old Act, if an application was accepted under s 63, the Registrar was required to give notice of the application to all persons whose interests may be affected by a determination in relation to the application and then record details of the application in the register of native title claims. Under s 66(3), the notice was required to state that any person who wanted to be a party must notify the Registrar within a period of two months starting the day the notice was given. 7 The notification commencement date in respect of the present application was 28 March 1997. Accordingly, when the Act was amended in 1998, the s 66 period was completed. However, clearly enough, the application had not been finalised. 8 Accordingly, the proceeding falls within Case 3 in item 6 of Table A of the New Act, which contains transitional provisions in connection with the amendments of 1998. The application is, therefore, taken to have been made to the Federal Court. Under item 36, that means that the application is to be treated as if it were made to the Federal Court under the relevant provisions of the New Act. The Registrar was required to give the application to the Federal Court. Clearly, that step has been taken. 9 In addition, under item 6 of Table A, any notification is to be taken to be for the application taken to have been made to the Federal Court, and the same people are the parties to the application. Under item 43, that means that any people who are parties to an application that was made to the Registrar under s 61 of the Old Act are taken to be the parties to the application that is taken to have been made to the Federal Court under the relevant provisions of the New Act. 10 However, those transitional provisions do not provide that an application that was made to the Registrar under s 61 of the Old Act is to be taken to comply with the requirements of the New Act. Thus, even if an application satisfied the requirements of s 61 of the Old Act, it will still be required to satisfy the requirements of s 61 of the New Act. 11 Under s 61(1) of the New Act, a native title determination application may be made by a person 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 claim. Those persons are defined as the native title claim group. Under s 61(4), a native title determination application that persons in the native title claim group authorise the applicant to make must either name those persons or describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. 12 Unless the person who makes a native title determination application is authorised to make it, the native title determination application will not comply with s 61(1) of the New Act. Section 84C(1) of the New Act provides that, if an application does not comply with s 61 of the New Act, a party to the proceeding may, at any time, apply to the Federal Court to strike out the application. Under s 84C(2), the Court must, before any further proceedings take place in relation to the application for determination, consider the application made under s 84C(1). 13 On 28 May 1999, a further amended application was lodged with the Federal Court ('the Wharton Application'). The Wharton Application named Wayne Morris Wharton as the applicant, and specified that the claim was made on behalf of the following family groups and their descendants: · Lucy Sheridan, born on the Nebine about 1850, and her descendants; · Kitty of Bollon, born about 1850, and her descendants; · Coombra Jack and Fanny and their descendants; · Peter of the Maranoa, born about 1850, and Angelina, and their descendants; · Susan Mitchell, born on the Nebine about 1865, and her descendants; · Maggie of Bendee Downs, born on the Nebine about 1862, and her descendants; · Mary Button of Murra Murra born about 1869 and her descendants.