Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398

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)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY QG6031 OF 1998

BETWEEN: WAYNE WHARTON ON BEHALF OF THE KOOMA PEOPLE

APPLICANT

AND: STATE OF QUEENSLAND & ORS

RESPONDENTS

JUDGE: EMMETT J

DATE: 3 DECEMBER 2003

PLACE: 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.