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Editors --- "Munn for and on behalf of the Gunggari People v Queensland - Case Summary" [2001] AUIndigLawRpr 47; (2001) 6(4) Australian Indigenous Law Reporter 40


Court and Tribunal Decisions - Australia

Munn for and on behalf of the Gunggari People v Queensland

Federal Court of Australia (Emmett J)

23 August 2001

[2001] FCA 1229

Application under Native Title Act 1993 (Cth) — where proceedings split land into two parts — whether all parties must reach agreement or only parties with interest in the relevant part of land — whether appropriate to split proceedings — the Court’s discretion making order under s 87 — relevant factors the Court must take into account when determining whether the Court is satisfied it is appropriate to make orders

Facts:

The Gunggari People brought an application under the Native Title Act 1993 (Cth) (‘the Act’) for determination of parcels of land situated near Roma in south-western Queensland.

On 6 June 2001, after a court mediation conference, Emmett J made orders that the proceedings would continue with the land divided into two parts — ‘Part A’ and ‘Part B’. These orders were made in the expectation that agreement would be reached between the parties on orders to be made in relation to the Part A land.

Not all parties could agree on orders to be made for the Part A land. This was despite the fact that the only parties with an interest in Part A — the applicants, Telstra and Queensland — were in agreement on proposed orders.

As a result the applicants filed a motion seeking the Court make orders without the consent of all the parties in relation to Part A, or in the alternative that the application be amended pursuant to s 64 of the Act to reduce the area of land and waters of the determination area.

Some parties were concerned that any order made in relation to Part A could prejudice their interests in relation to Part B. The concern was that evidence used to support the orders by consent for Part A (especially evidence of ancestry, connection or partial extinguishment), could also be relevant to Part B. The argument was raised that this might prejudice parties that wish to contest that evidence in relation to Part B, given that the Court would examine this evidence to determine whether the order should be made. These parties argued that this should affect the test of appropriateness for orders made under s 87 of the Act.

Held:

1. Section 87 uses the words ‘the parties’. Therefore under s 87, to make an order by consent relating to part of the determination area all parties to the proceedings must agree, not just the parties with an interest in that land. [9]

2. Given that the consent of all parties is needed to make a s 87 order, it would seem to be inappropriate to split the proceedings using either the Court’s power under the Federal Court of Australia Act 1976 (Cth) or under s 67 of the Native Title Act, which is meant to deal with the splitting of proceedings only where there are overlapping applications. No final view was expressed on this matter as it was considered that the applicants could make use of s 64 of the Act to achieve the result they desired. [16]

3. The applicants were granted leave, to the extent that leave would be required, to modify the area for determination, by means of s 64 of the Act, to include only the land described as Part A. [18]

4. In these circumstances, the Court may make an order pursuant to s 84(8) of the Act that all respondent parties, except the parties with an interest in Part A land, cease to be a party to proceedings. [19]

5. The power to make orders under s 87 is fettered only by the conditions set out in the Act and the duty to act in accordance with ordinary judicial principles: [26]. Consequently, it is not necessary for the Court to satisfy itself as to the merits of the claim, although in some cases the Court may wish to see some evidence going to the merits: [26].

6. The factors the Court took into account when determining the appropriateness of s 87 orders were:

(a) The order should be made having regard to the object and purpose of the Act. [28]

(b) Parties affected by the order should have independent and competent legal representation. The State, especially, in the capacity of parens patrie should have taken adequate steps look after the interests of the community in general. Insuring this might involve the Court asking to see the evidence on which the requested order is based. The Court, however, would not want to predict the State’s assessment of that evidence but merely assure itself that parties had acted in good faith and rationally. [29], [30]

(c) The Court would take into account whether the native title rights are recognisable under the State or Federal laws, and any extinguishment of those rights. Again the Court may be willing to rely on the judgement of the parties on this point. [31]

(d) The Court would need to be satisfied that the requirements of the Act are met and that the orders are unambiguous. [32]

(e) The Court may also take into account the possible effect of upcoming decisions in the superior courts on the order, as was done in Ngalpil v State of Western Australia [2001] FCA 1140. [33]

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