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Editors --- "Munn on behalf of the Gungarri People v Queensland - Case Summary" [2002] AUIndigLawRpr 11; (2002) 7(1) Australian Indigenous Law Reporter 35

Court and Tribunal Decisions - Australia

Munn on behalf of the Gungarri People v Queensland

Federal Court of Australia (Emmett J)

6 February 2002

[2002] FCA 78; BC200200205

Native title — application for joinder to proceedings — Native Title Act 1993 (Cth) ss 66(3), 84(3) and 84(5) — applicant native title representative body — whether interests affected

Facts

The principal proceedings involved a claim under the Native Title Act 1993 (Cth) (the Act) for the determination of native title over land, a substantial parcel of which had been excised by the applicants and made the subject of a separate application. The remaining land was referred to as ‘the Part A land’, and excised land ‘the Part B land’. The parties to the proceeding relating to the Part B land included the Queensland South Representative Body Aboriginal Corporation (Queensland South) and Wayne Wharton as a representative of the Kooma people. These persons were not parties to the application concerning the Part A land. Queensland South sought to be joined as a respondent to the proceedings in relation to the Part A land pursuant to s 84(5) of the Act on the grounds that its interests may be affected by a determination in the proceedings. This application was made on the basis that Queensland South had received instructions from representatives of the Kooma people to the effect that the Part A land was properly described as ‘shared country’ of both the Gunggari people, the applicants in the native title application and the Kooma people.

Held

1. Queensland South is the representative body for the area that includes the Part A land. The functions of such a representative body are specified in s 203B of the Act and include an obligation, as far as is reasonably practicable, to identify persons who may hold native title in the area for which the body is the representative body. Queensland South does not appear to have identified the Kooma people as persons who may hold native title in the Part A land. [14]

2. Section 66(3) of the Act requires that, subject to that section, the Registrar of the National Native Title Tribunal must give notice containing details of any native title application to the persons specified in s 66(3)(a). These include ‘any representative Aboriginal/Torres Strait Islander for any body of area covered by the application’ and, as stated in s 66(3)(a)(vii), ‘any person whose interests may be affected by a determination in relation to the application’ if considered appropriate by the Registrar. Section 84(3) also provides that a person is a party to proceedings if, among other things, the person is covered by paragraph 66(3)(a) and ‘notifies the Federal Court within the period specified in the notice under s 66, that the persons want to be a party to the proceeding’. Hence the Act clearly contemplates that a representative body may be a party to a proceeding, but only if it notifies the Federal Court in writing within the time specified in s 84(3)(b). [9]–[10], [16]

3. Notice under s 66 was given to Queensland South but has expired. No notification was given by or on behalf of Queensland South pursuant to s 84(3)(b). In the absence of notification under s 84(3)(b) and in the absence of any power to extend the time for giving such notification, the only power for joinder of Queensland South would arise under s 84(5), which provides that the Federal Court may at any time join a person as a party to proceedings ‘if the Court is satisfied that the person’s interest may be affected by a determination in the proceedings’. [11]–[12]

4. There are doubts as to whether the duty of Queensland South to perform functions referred to in s 203B of the Act constitutes an interest that may be affected by a determination in the proceeding. If a representative body having the functions referred to in s 203B were a person whose interests may be affected by a determination, s 66(3)(a)(vii) would be otiose and have no work to do at all. [16]–[17]

5. If the Kooma People, or Mr Wharton on behalf of the Kooma People, are joined as a party, the need for the joinder of Queensland South may be obviated. Accordingly, the Court stood the motion over to enable an application to be made by or on behalf of the Kooma people if they are so advised. [18]–[19]?