Kulkalgal People v Queensland [2003] FCA 163 (28 February 2003)

Last Updated: 10 March 2003

FEDERAL COURT OF AUSTRALIA

Kulkalgal People v State of Queensland [2003] FCA 163

KULKALGAL PEOPLE (AUREED ISLAND) v STATE OF QUEENSLAND AND OTHERS

Q 6006 OF 2001

DRUMMOND J

28 FEBRUARY 2003

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 6006 OF 2001

BETWEEN:	KULKALGAL PEOPLE (AUREED ISLAND) APPLICANT
AND:	STATE OF QUEENSLAND AND OTHERS RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	28 FEBRUARY 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The notice of motion filed 6 December 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	Q 6006 OF 2001

BETWEEN:	KULKALGAL PEOPLE (AUREED ISLAND) APPLICANT
AND:	STATE OF QUEENSLAND AND OTHERS RESPONDENT

JUDGE:	DRUMMOND J
DATE:	28 FEBRUARY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 Mrs Gebadi  applies by notice of motion for leave to become a party to the application.

2 Mrs Gebadi  relies upon s 84(5) the Native Title Act 1993 (Cth) ("the Act"). The application is, however, in my opinion, doomed to failure. The native title application was filed in this Court on 26 February 2001. There were three applicants. The native title claim group is described as the Kulkalgal People who are the descendants of a number of named ancestors. The group in question includes people from Warraberalgal, Porumalgal and Masigalgal native title clans or groups.

3 There is no suggestion that Mrs Gebadi  is anything other than a member of the claim group. She is a Kulkalgal without any doubt. The reason why she has sought to be joined as a party is that, although she is a member of a claim group and although when the application was filed the three named applicants had the authority of every member of the group to bring the application on behalf of the Kulkalgal People, she has become dissatisfied with the course discussions have taken in an attempt to get the claim to a stage where it can be brought before the Court for a consent determination.

4 She contends that her views are being disregarded and, in effect, people from various islands, though members of the claim group, appear to be going to be given rights with respect to Aureed which she believes they are not truly entitled to.

5 Unfortunately, the scheme of the Act seems to me to be clear and designed to prevent an application of the kind before me on the motion succeeding. By s 61(1) of the Act, it is provided that persons who may make a native title application are persons authorised by all the native title claim group to make the application. Section 61(2) provides that in the case of such a native title application, the named applicant or applicants are jointly "the applicant" and that "none of the other members of the native title claim group ... is the applicant". Section 62(1)(a)(iv) requires, as I have already alluded to, that before a claim can be accepted for filing, it must be accompanied by an affidavit sworn by the applicant deposing to having the authority of all persons in the native title claim group to make the application.

6 It appears clear enough that a native title application can only be made by a person or persons with the authority of all persons in the claim group. The Court will therefore necessarily have before it, on the applicant's side, an applicant who represents all members of the claim group. By the statute in s 62A, such a representative applicant is given full authority to "deal with all matters arising under [the Native Title Act] in relation to the application".

7 If, as appears to have occurred here, one of the members of the claim group, after the regular institution of a native title claim, becomes dissatisfied with the way his or her interests are being represented by the applicant on the claim, then the only avenue provided for by the Act is that contained in s 66B. The dissatisfied claim group member can apply to the Court to have the applicant in the proceedings replaced. But the section makes it clear that a member of a claim group who becomes dissatisfied, after the institution of the proceedings, with the way the applicant is conducting the proceedings can only make such an application if the dissatisfied person has the authority of all the members of the claim group to seek replacement of the named applicant.

8 The statutory scheme leaves no room for the principle referred to in cases such as John v Rees [1970] Ch 345 at 371 that a person represented in an action by a representative applicant under O 6 r 13 the Federal Court Rules can, if dissatisfied with the way the representative applicant is conducting the action, be joined as a respondent in the proceedings.

9 In my opinion, there is no legal basis for the present notice of motion and I will order that it be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 6 March 2003

Counsel for Mrs Gebadi:	P Poynton
Solicitor for Mrs Gebadi:	Terry Fisher & Co
Solicitor for the Kulkalgal People:	Torres Strait Regional Authority
Solicitor for the State of Queensland:	Crown Law
Date of Hearing:	28 February 2003
Date of Judgment:	28 February 2003