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[2002] FCA 486
procedural. The reasons state that the Brandfield Respondents were to be joined in both proceedings and that Wayne Wharton was to be joined as an individual party in proceeding QG 6019 of 1998, with the...
1 cited instrument linked from this judgment.
The Federal Court considered whether people claiming Kooma interests in land covered by Gunggari native title proceedings could participate in those proceedings. Emmett J allowed the individuals to join because they asserted interests that might be affected. He did not allow Wayne Wharton to join as a representative of the Kooma people. The judge considered that a native title claim might itself justify joinder even where the Court could not determine that claim in the proceeding, but expressly did not need to decide that issue. The applications concerned procedure only and did not determine who held native title. The judgment's reproduced formal orders and reasons appear inconsistent about whether Wharton was included in the final joinder orders.
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2,207 words · generated 01/10/2026
Emmett J dealt with applications for joinder in two Federal Court proceedings brought by Robert John Munn for the Gunggari people against the State of Queensland: QG 6019 of 1998 and Q 6027 of 2001. The applications were interlocutory. The Court was not deciding whether the Gunggari or Kooma people held native title, nor determining the nature or extent of any such rights. It was deciding who could participate in the proceedings.
The Brandfield Respondents, a group of individuals asserting interests as members of the Kooma people, sought joinder by motions filed on 18 March 2002. Wayne Wharton filed a separate motion on 15 February 2002, seeking to join the earlier proceeding in a representative capacity on behalf of the Kooma people. The judgment says that Wharton’s purpose was to oppose certain aspects of the Gunggari claim for the Kooma people ([1]–[4]). None of the existing parties, other than those seeking joinder, supported or opposed the motions ([1]).
The central question was whether the asserted Kooma interests could be affected by a determination in the Gunggari proceedings and, separately, whether Wharton could participate as a representative. Section 84(5) of the Native Title Act 1993 (Cth), as quoted by the judge, allowed the Court to join a person if satisfied that the person’s interests might be affected by a determination ([3]).
Emmett J concluded that the Brandfield Respondents and Wharton had asserted interests that justified their participation as individuals ([11]). He did not allow Wharton to join in a representative capacity ([9]–[11]). The reasons say that the motions were otherwise dismissed and the matters listed for directions ([12]–[14]).
There is an apparent discrepancy in the supplied judgment text. The formal order blocks list the Brandfield Respondents to be joined, but do not name Wharton. By contrast, paragraph [11] says that Wharton should be joined as a party, and paragraph [12] says that an order would be made joining him in proceeding QG 6019 of 1998. The reasons and the reproduced formal orders therefore do not align completely on that point. The judgment also spells the first name in the group as “Una Brandfield” in the reasons and “Una Branfield” in the order blocks. Those differences should be kept visible rather than resolved by assumption.
The judge began with the statutory threshold in s 84(5): whether the person’s interests “may be affected” by a determination. The Brandfield Respondents and Wharton claimed interests as members of the Kooma people in land covered by the proceedings. Their claims were not determined on the joinder motions. The Court’s task was to assess whether those asserted interests supported party status at this procedural stage ([3], [11]).
The reasons address a possible difficulty. Olney J’s decision in Yarmirr v The Northern Territory of Australia and ors was drawn to Emmett J’s attention. As Emmett J described it, that judgment reasoned that the Court could not determine claimed native title rights without an application under the statutory procedures, and that an interest in the nature of native title alone was not sufficient for joinder ([5]–[6]). The present judge explained that the Act restricts how a determination of native title may be made. In particular, he referred to s 213(1), the application procedures in s 61 and s 74, and the content of a determination under s 225 ([6]–[7]).
Emmett J nevertheless distinguished the Court’s ability to determine a claimed right from whether the holder of that claim might participate in a proceeding. He said that a holder of a native title interest “may have sufficient interest to warrant participation” even where the Court could not determine that interest in the particular proceeding ([8]). He also described a native title determination as, in a sense, a determination in rem and referred to s 67, which requires appropriate arrangements where proceedings cover the same area ([7]). These points help explain why a person asserting an interest could have a procedural stake even if the Court could not decide that person’s claim through the proceeding then before it.
The qualification matters. Emmett J said he would decline to follow a judgment indicating that a native title claim was not, of itself, sufficient to justify joinder. But he then expressly stated that, because there was no opposition to joinder, it was “not essential” to resolve that question ([8]). The decision therefore expresses a view on the issue without making a necessary, contested determination of it. The result rested on the individual applicants’ asserted interests and the absence of opposition, not on a definitive ruling that every native title assertion automatically satisfies s 84(5).
The representative-capacity issue was treated differently. Wharton wanted to join for the Kooma people, rather than only as an individual. Emmett J said that it was not appropriate to join a respondent in a representative capacity ([9]). He considered s 84(5A), which concerns a person whose interests arise merely from a public right of access or use. That provision permits orders to ensure proper representation and allows the Court to limit the number of such people who become parties. The judge considered that this recognition of representative arrangements did not mean a person was made a respondent in a representative capacity ([9]–[10]). Wharton could therefore be joined individually without being authorised by this decision to represent all Kooma people.
The judgment describes the statutory position as requiring native title determinations to be made through the Act’s prescribed procedures. As Emmett J explained, ss 61 and 74 and Part 3 are relevant to an application for determination, while s 213(1) requires a determination necessary for a matter before the Court to comply with those procedures ([6]). Section 225, reproduced in the reasons, identifies matters a determination must address, including who holds the rights, the nature and extent of native title and other interests, and the relationship between them ([7]).
The decision did not alter those statutory requirements. It did not authorise the Court to determine Kooma native title in a proceeding where the required application was absent. Its procedural point was that a person’s possible interest in the outcome could be relevant to joinder independently of whether that interest could be determined in the same proceeding ([8]).
The judgment also refers to s 67 as addressing overlapping proceedings. Where two or more proceedings concern applications covering the same area, the Court must make an appropriate order to ensure the overlapping parts are dealt with in the same proceeding ([7]). Emmett J connected that provision with the intention that a determination provide a final resolution of native title for the particular area. He did not, however, make a s 67 order in the reasons supplied.
As to the state of the law after Munn, the judgment itself records Emmett J’s disagreement with the approach he attributed to Yarmirr, but reserves the final resolution of the joinder question because it was unnecessary on the facts ([8]). The supplied text contains no later judgments or legislative materials. It therefore cannot establish how later courts treated Munn, whether they adopted its reasoning, or whether they confined it. Any account of subsequent treatment would require sources beyond this judgment.
At [3], the judge sets out the statutory test: the Court may join a person if satisfied that the person’s interests “may be affected” by a determination. In plain English, the inquiry is about a possible effect on the person’s interests, not a final ruling that the person’s underlying claim is correct.
At [6], the reasons explain that a native title determination must follow the statutory application procedures. Put simply, the Court could not use a joinder motion as a substitute for the formal process required to seek a determination of native title.
At [8], Emmett J says a native title holder may have enough interest to participate even if the Court cannot determine that person’s claim in the particular proceeding. This separates the procedural question, who may take part, from the substantive question, whose native title rights exist. The judge’s next qualification is important: he said the point did not need to be resolved because no one opposed joinder.
At [9], the judge states that it is not appropriate to join a respondent in a representative capacity. The practical distinction in this judgment is that Wharton could be joined as an individual with his own asserted interest, but not as the party representing all Kooma people.
At [11], the judge applies that reasoning to the applicants. He says the Brandfield Respondents and Wharton claimed interests as Kooma people and, “to that extent”, had interests justifying party status. The phrase confines the statement to the asserted interests relevant to the joinder application. It is not a finding that they held native title.
At [13], the reasons note that the parties might consider whether a consent order could be made for part of the Part A land. That was a possible future procedural arrangement, not an order resolving the land or the native title claims.
The decision is relevant to procedural disputes where a person seeks to join a native title proceeding under s 84(5) because they claim an interest that may be affected by the determination. Its closest factual fit is a person who asserts an interest in the land covered by the proceeding, seeks individual party status, and faces no opposition to joinder. Those circumstances resemble the basis on which Emmett J accepted the individual joinder applications ([3], [11]).
It is also relevant where an applicant seeks to participate as a representative of a wider group. The judgment distinguishes the asserted individual interests of the proposed parties from Wharton’s request to act for the Kooma people ([4], [9]–[11]). It indicates that, in Emmett J’s view, joinder as a respondent should not be granted in that representative capacity. The decision does not set out a comprehensive test for representative status in all contexts, so its reasoning should be kept tied to the statutory provisions and procedural issue addressed.
The case is less conclusive where joinder is contested and the only asserted basis is a claimed native title interest. Although Emmett J expressed a view that such an interest may suffice, he expressly left the question unresolved because there was no opposition ([8]). It is also not a determination of the merits of competing native title claims, proof of group membership, or the existence, content or extent of native title.
The supplied judgment does not identify any later decisions that applied, followed, distinguished or criticised Munn. It discusses Yarmirr, an earlier Federal Court decision, and explains Emmett J’s disagreement with the view he attributed to it on whether a claimed native title interest could support joinder ([5]–[8]). That is the only precedent relationship available from this source.
Accordingly, no reliable statement about later judicial treatment can be made from the supplied material alone. The decision itself should be described with care: it records a considered view against the approach attributed to Yarmirr, but also says the relevant issue was not essential to decide. A later-court research task would need to check subsequent judgments and any statutory amendments before characterising the current status or reach of that view.
The final orders also warrant checking against the court record if procedural precision matters. The reproduced orders name the Brandfield Respondents but not Wharton, while paragraphs [11]–[12] of the reasons state that Wharton was to be joined in QG 6019 of 1998. The source provided does not explain that difference.
The most immediate open question is whether a claimed native title interest alone is sufficient to satisfy s 84(5) where joinder is contested. Emmett J’s view points towards sufficiency in an appropriate case, but the judge expressly did not need to resolve the issue ([8]). The decision therefore does not provide a definitive answer for a contested application.
A second question concerns the boundaries between individual party status, representative applications and any representative arrangements under the Act. The judgment distinguishes joining a person as a respondent in a representative capacity from the provision in s 84(5A) for ensuring proper representation of interests arising from public access or use ([9]–[10]). It does not comprehensively address all possible statutory bases for representative participation.
A third question is how joinder should be coordinated with overlapping native title claims. The reasons discuss s 67 and the final character of a determination, and note that other Kooma claims existed and that fresh proceedings had recently commenced ([4], [7], [13]). The Court stood the proceedings over for directions and allowed time for the parties to consider the further conduct of the matters ([13]–[14]). It did not decide how the overlapping claims should ultimately be managed.
Finally, the text leaves an order-record question: why the formal orders reproduced in the judgment do not name Wharton, although the reasons say he would be joined in QG 6019 of 1998. The provided material does not resolve that inconsistency. This analysis is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on it, have a qualified Australian lawyer check it.
1 I have before me applications in two separate proceedings for joinder of individuals as respondents. In proceeding QG6019 of 1998 there are two motions: one filed on 18 March 2002 on behalf of Una Brandfield and others ("the Brandfield Respondents"); and one filed on 15 February 2002 on behalf of Wayne Norton. In proceeding Q 6027 of 2001 I have another motion, also filed on 18 March 2002, for the joinder of the Brandfield Respondents. Mr Wharton is already a respondent in proceeding Q 6027 of 2001. None of the current parties to either of the proceedings, other than the moving parties, supports or opposes the motions. 2 The only issue of contention concerns the capacity in which Mr Wharton would be joined as a respondent to proceeding QG6019 of 1999. In his motion, filed on 15 February 2002, Mr Wharton sought to be joined as a representative of the Kooma people. His application was supported by an affidavit sworn on 15 February 2002 intended to establish his authority for seeking to be joined on behalf of the Kooma people. 3 The applications are brought pursuant to s 84(5) of the Native Title Act 1993 (Cth), which provides that the Federal Court may, at any time, join any person as a party to a proceeding if the Court is satisfied that the person's interests may be affected by a determination in the proceeding. The interest claimed by Mr Wharton and by the Brandfield Respondents is that they, as members of the Kooma people, have native title interests in the land which is the subject of the relevant proceeding. 4 Mr Wharton seeks to be joined in a representative capacity so that he will be in a position to oppose certain aspects of the claim by the Gunggari people on behalf of the Kooma people. There are other claims presently before the Court on behalf of the Kooma people although none of the present applicants for joinder is an applicant in those proceedings. 5 My attention has been drawn to the decision of Olney J in Yarmirr v The Northern Territory of Australia and ors (Federal Court of Australia 4 April 1997, unreported). His Honour, in that case, considered an application for joinder based on an interest as the holder of a native title right and expressed the view that, from the very nature of the claimed native title right that it was said may be affected by a determination in that proceeding, if that right was to be the subject of consideration by the Court, it would be necessary for the Court first to make a determination in respect of that right. 6 However, s 213(1) of the Act provides that if, for the purpose of any matter or proceeding before the Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures contained in the Act. The procedures in question do not admit of an application for a determination of native title being made otherwise than pursuant to s 13 and Part 3 of the Act. His Honour considered that, in the absence of an application pursuant to s 61 and the lodging of such an application with the Court pursuant to s 74, the Court had no jurisdiction to make a determination in respect of claimed native title rights. Accordingly, an interest in the nature of native title, and nothing more, was not sufficient warrant for joinder pursuant to s 84(5). 7 Section 225 of the Act provides as follows: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area ) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Thus, in a sense, a determination of native title is a determination in rem. In recognition of the nature of a native title determination, s 67 directs that, if two or more proceedings before the court relate to native title determination applications that cover, in whole or in part, the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. 8 The clear intention is that a determination should be a final resolution, once and for all, of the extent of native title in relation to a particular parcel of land. However, it does not necessarily follow that a native title interest would not constitute interests that might be affected by a determination made in a proceeding under the Act. The holder of a native title interest may have sufficient interest to warrant participation in a proceeding, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question. I would therefore with respect decline to follow any judgment which indicates that a claim to native title is not of itself sufficient interest to justify joinder under s 84(5). However, in the absence of any opposition, it is not essential for me to resolve that question. 9 Even so, I do not consider that it is appropriate to join any person as a respondent in a representative capacity. An application may be made in a representative capacity. The Act provides accordingly. In this regard s 84(5A) may have some relevance. Section 84(5A) provides: "If: (a) a person wants to become a party to the proceedings; and (b) the Federal Court is satisfied that the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; the Court: (c) may make appropriate orders to ensure that the person's interests are properly represented in the proceedings; but (d) need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use." 10 Certainly s 84(5A) is limited to persons whose interests are affected simply as having a public right of access. Nevertheless s 84(5A) recognises that it may be appropriate to limit the number of persons asserting similar claims, if the Court is satisfied that the interests of those persons will be properly represented by another person who is a party. That, however, is not to say that a person is a respondent in a representative capacity. 11 Since there is no opposition to the joinder of Mr Wharton as an individual respondent, I consider that it is appropriate to make an order that he be joined as a party, but not to represent any other persons. Similarly, since there is no opposition to the joinder of the Brandfield Respondents, I consider that it is appropriate that they be joined. The Brandfield Respondents and Mr Wharton all make claims that they have interests as members of the Kooma people. To that extent I consider that they have an interest that would justify their being parties to the proceeding. 12 Accordingly in proceeding Q 6027 of 2001 I will make an order in terms of paragraph 2 of the notion of motion filed on 18 March 2002. In proceeding QG 6019 of 1998 I make an order in terms of paragraph 2 of the notice of motion filed in that proceeding on 18 March 2002. In proceeding QG 6019 of 1998 I will order that Wayne Wharton be joined as a party to the proceeding. I will order that the notices of motion be otherwise dismissed. 13 In the light of the information given by senior counsel that fresh proceedings have been commenced on behalf of the Kooma people in the recent past, making a claim to part of the land that is the subject of proceeding QG 6019 of 1998, it is appropriate that the parties be given some further time to consider their attitude to the further conduct of these proceedings. As the parties are aware, there was a proposal, almost given effect to last year, for consent declarations to be made in relation to the land that is the subject of proceeding QG 6019 of 1998 ("the Part A land"). It may be that some procedure can be devised that will enable a consent order to be made in relation to part of the Part A land. However, the parties have not yet had the opportunity of considering their attitude to such a proposal. 14 Accordingly, I will fix both proceedings for directions generally on 30 April 2002 at 9.30am in Brisbane. I will give any of the parties leave to file any notice of motion returnable before me on that day for directions or other orders relating to the further disposition of the proceedings. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Counsel for the Applicant: Mr Munn appeared in person
Counsel for the Respondent: Mr G Hiley QC & Ms M. Pollard
Solicitor for the Respondent: Department of the Premier and Cabinet
Solicitor for Agforce Pastoralists Thynne & Macartney
Counsel for Una Brandfield on behalf of Kooma People Mr M. Maurice QC
Counsel for Wayne Wharton on behalf of Kooma People Mr A. Preston
Counsel for Paroo Shire Council Mr Neilson
Date of Hearing: 9 April 2002
Date of Judgment: 9 April 2002
Munn
State of Queensland
The reasons state that the Brandfield Respondents were to be joined in both proceedings and that Wayne Wharton was to be joined as an individual party in proceeding QG 6019 of 1998, with the joinder motions otherwise dismissed and the matters stood over for directions. The formal order blocks reproduced above list the Brandfield Respondents but do not list Wharton, creating an apparent inconsistency with paragraphs [11]–[12] of the reasons.