Kooma People v Queensland [2002] FCA 86 (8 February 2002)

Last Updated: 26 February 2002

FEDERAL COURT OF AUSTRALIA

Kooma People v State of Queensland [2002] FCA 86

NATIVE TITLE - joinder of representative body under s 84(5) the Native Title Act 1993 (Cth) refused on discretionary grounds

Native Title Act 1993 (Cth) - ss 66, 84, 203B

Munn v State of Queensland [2002] FCA 78 referred to

KOOMA PEOPLE v STATE OF QUEENSLAND & ORS

QG 6031 OF 1998

DRUMMOND J

BRISBANE

8 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6031 OF 1998

BETWEEN:	KOOMA PEOPLE APPLICANT
AND:	STATE OF QUEENSLAND & ORS RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	8 FEBRUARY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The notice of motion filed 30 January 2002 be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6031 OF 1998

BETWEEN:	KOOMA PEOPLE APPLICANT
AND:	STATE OF QUEENSLAND & ORS RESPONDENT

JUDGE:	DRUMMOND J
DATE:	8 FEBRUARY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 I have before me a motion by the Queensland South Representative Body Aboriginal Corporation for an order joining it as a respondent party to the native title claim made on behalf of the Kooma people. The application is brought under s 84(5) the Native Title Act 1993 (Cth) ("the Act"). This empowers the Court at any time to join any person as a party to the proceedings if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.

2 The application is opposed by Mr Wayne Wharton, the applicant who commenced the proceedings now in this Court claiming native title in certain lands for the Kooma people.

3 The native title claim to which the Corporation now wishes to be joined was filed as long ago as June 1996. The Corporation has put evidence on in support of its application for joinder. That evidence is limited to an affidavit from its legal consultant, Mr Bowden, which he says he has made "in support" of the joinder application. He says in par 5 that at a meeting held on 7 December 2001 the applicant Corporation was authorised by certain Kooma people to act on their behalf and represent their interests; he annexes the minutes of that particular meeting. It is apparent from what appears in the minutes of meeting that when Mr Bowden says that the Corporation was authorised by certain Kooma people to act on their behalf and represent their interests, that that is an assertion by Mr Bowden on behalf of the Corporation that it is authorised to represent the interests of certain Kooma people in the present native title claim now pending in this Court.

4 It is significant that the minutes of what is described as "Kooma Traditional Owners Meeting" held on Friday 7 December 2001 contain the following resolutions:

(1) that the meeting instruct the Corporation to represent Kooma traditional owners in relation to their native title rights and interests;

(2) that the Corporation prepare a native title claim on behalf of the Kooma traditional owners;

(3) that Wayne Wharton be advised that he no longer represents the Kooma native title claim QC 96/16.

5 (That is a reference to the litigation pending in this Court to which I have already made reference. Mr Wharton remains on the record as the native title claimant in the proceedings.) To return to the minutes of meeting, resolution (5) provides:

"That the QSRBAC is authorised to receive all files, materials, documents and information in relation to the native title rights and interests of the Kooma Traditional Owners."

6 Resolution (6) provides:

"That Wayne Wharton or his legal representative deliver up all files, materials, documents and information in relation to the Kooma Native Title Claim QC 96/16 and Kooma native title rights and interests."

7 I should observe that, while none of the resolutions was passed unanimously by the thirty-four or so people attending the meeting of 7 December, they were each passed by a very large majority.

8 On the face of it, there appears to have been a long period of delay in making this application for joinder. There is no explanation offered for that delay. The clear inference from this and from the only material which the Corporation has seen fit to put before the Court in support of its application for joinder, confined as it is to the record of what took place at this meeting of 7 December, is that the Corporation is seeking, in response to the resolutions passed at the meeting of 7 December, to take control of the pending litigation in this Court.

9 The inference is, in other words, that the Corporation is seeking to respond to the request by the majority of people who attended that meeting to take control of the pending litigation and to take that control out of Mr Wharton's hands.

10 In response to the application, Mr Wharton has filed an affidavit. What he says in his affidavit reinforces the inference that I have referred to which I think is to be drawn from the material put on by the Corporation as going to explain the application for joinder, so long after initiation of the claim. In par 14, he picks up reference to the meeting of 7 December and says:

"The way in which the meeting was called is inadequate and improper. The meeting was not adequately advertised so that it could be attended by people who, under Kooma law, should be present at such a meeting. Not all of the Kooma people, including our old people, received the notice of the meeting prepared by the land council. It [obviously the notice] did not have an agenda and no-one could know what the meeting was about or make the decision to attend or not."

11 He continues in par 19:

"The People who were at the meeting do not represent all Kooma People and did not seek permission to represent the Kooma People. Nor do they represent all the descendants of the various apical ancestors who make up the Kooma people. They can only speak for themselves as individuals. They need permission from others to speak in any representative capacity."

12 In par 25 he says:

"I have since the meeting been approached by a number of people who have expressed their concern about the legality and purpose of the meeting and they have said to me and I verily believe that they do not want the claim affected in any way shape or form."

13 What Mr Wharton has to say about the deficiencies in the notice convening the meeting seems to be supported by what Mr Preston, counsel for Mr Wharton, has to say in his affidavit. He was, in fact, invited to attend this meeting, although, as his affidavit indicates, he was excluded from a large part of the proceedings, though he attended at the meeting venue. He exhibits a copy of the notice he received inviting him to the meeting. It was sent to him by the Corporation and it contains no indication to recipients of the notice of what is the business to be transacted at the meeting.

14 Now, as I have said, joinder is sought by the Corporation under s 84(5). A question of the Court's power to join the Corporation at this time is raised. This is so notwithstanding the fact that by force of ss 66(3)(a)(i) and 84(3)(a)(i) the relevant representative body has a statutory right to become a party to a native title claim, if it acts within the time referred to in s 84(3)(b) for responding to the notice of the making of the claim which it is entitled to receive from the Registrar. That question arises because of the decision of Emmett J in the matter of Munn v State of Queensland [2002] FCA 78 given on 6 February last. In pars [10] to [19] of his Honour's reasons, he explains why he considered there was an absence of power to join the present applicant as a party in the proceedings before him after expiry of the period of notice referred to in s 84(3)(b) of the Act.

15 Mr Maurice, counsel for the Corporation, challenges the correctness of this decision and there is substance, in my opinion, in much of what Mr Maurice has to say. However, it is unnecessary, in the view I take of things, for me to express my own views on whether s 84(5) is limited in the manner suggested by Emmett J in his decision so as not to authorise joinder of a representative body under its provisions at any time.

16 In my view, this application must be dismissed on discretionary grounds, assuming there is power to join the Corporation under s 84(5).

17 It is true, as Mr Maurice has forcefully submitted, that the applicant Corporation has important statutory functions to perform in relation to the making and support of native title claims. See s 203B, and following, of the Act. But joinder has not been sought by the Corporation simply because it has these important statutory functions to perform. Quite the contrary. The joinder is specifically supported by the evidence of Mr Bowden, to which I have referred.

18 There is a total absence of evidence before me to suggest that joinder is necessary to enable the Corporation to properly perform any of its statutory functions. In other words, there is a total absence of any evidence to suggest that, though this claim has been on foot since 1996, there is now some situation that has emerged which would impede the Corporation from performing its statutory functions if it is not able to be joined as a respondent party.

19 Mr Maurice says that if joinder were permitted, it would be in a situation of being able to monitor and oversee the conduct of the proceedings, to obtain information, to be served with documents and the like. All that may be true, but there is no suggestion that the Corporation has sought and been refused information necessary to enable it to perform its functions from anyone associated with the litigation, including Mr Wharton.

20 There is, I think, substance in the submission by Mr Preston that joinder of the Corporation in the circumstances revealed by the evidence before me, far from facilitating the Corporation in performing its functions, as Mr Maurice suggests on general grounds unsupported by evidence, may significantly impede the Corporation from performing its functions.

21 The evidence indicates, as I have already outlined, that the Corporation is seeking joinder in response to what appears, from all the evidence before me, to be properly described as a request by one faction that has developed within the claimant group to take effective control of the litigation out of the hands of Mr Wharton and the faction that would appear to be aligned with him, and in effect exercise that control of litigation on behalf of the faction that carried the meeting of 7 December. The Corporation's dispute resolution functions, under s 203BF, would seem, in my opinion, on the evidence before me, likely to be put at risk of proper execution if I were to accede now to this application. It seems to me difficult for the Corporation properly to perform its functions under s 203BF if it seeks, as it does on the material it has chosen to put before me, now to be joined in order to align itself with but one faction within the claimant group. Its functions under s 203BC could, in my opinion, hardly be advanced by joining, it in the circumstances revealed by the evidence, where there is this factional rupture within the claimant group.

22 I emphasise that I am deciding this case on the evidence put before me. I invited Mr Maurice, in response to some information he conveyed to me from the bar table about a further meeting that the Corporation was planning to convene of members of the native title claimant group, to seek an adjournment of the proceedings. But he informed me that his instructions from his client were to proceed and ask for the motion to be determined on the material before me.

23 That I will do and, for the reasons given, I dismiss the notice of motion.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 11 February 2002

Counsel for Mr Wayne Wharton:	A Preston
Solicitor for State of Queensland:	Department of the Premier and Cabinet
Counsel for the Queensland South Representative Body Aboriginal Corporation:	M Maurice QC
Date of Hearing:	8 February 2002
Date of Judgment:	8 February 2002