Munn v State of Queensland

REASONS FOR JUDGMENT 1 I have before me an application pursuant to s 84(5) of the Native Title Act 1993 (Cth) ("the Act") for the joinder of Queensland South Representative Body Aboriginal Corporation ("Queensland South") as a respondent to this proceeding. The proceeding has been the subject of a number of amendments, one significant amendment was made last year when the applicants excised a substantial parcel of the claim and made a separate application in respect of the excised land. The remaining land is conveniently referred to as "the Part A land" and the excised land, which is the subject of the other proceeding is referred to as "the Part B land". 2 The parties to the proceeding relating to the Part B land include Queensland South and Wayne Wharton as a representative of the Kooma people. The application by Queensland South to be joined as a party to this proceeding is made on the basis that Queensland South has received instructions from representatives of the Kooma people to the effect that the Part A land is properly described as "shared country" of both the Gunggari people, the applicants in this application and the Kooma people. Queensland South seeks to be joined to ensure that the interst of the Kooma people in relation to the Part A land are adequately protected. I fixed the proceeding for hearing on 4 December 2001. It was at that hearing that it was proposed that a determination would be made by consent pursuant to an agreement entered into under s 87 of the Act. However, on 30 November 2001, Mr Bowden, a legal consultant to Queensland South, telephoned counsel for the applicants and informed him that some Kooma people had raised concerns regarding alleged Kooma interests over part of the Part A land being land in the township of Bollon. The parties subsequently agreed to vacate the hearing by consent and the proceeding was stood over to today. 3 In the meantime, Queensland South has filed a notice of motion seeking that it be joined as a party pursuant to s 84(5). The application by Queensland South is opposed by the applicants both on technical grounds and on substantive grounds relating to the exercise of discretion. Prior to the amendment that excised the Part B land, the Kooma people and Queensland South were parties to this proceeding. The circumstances in which Queensland South decided to make this application, notwithstanding that it had consented to being removed as a party, are not entirely clear. However, it appears that when Queensland South received instructions on 30 November 2001 it was furnished with two documents comprising an extract from a text entitled "Matya-Mundi" by Hazel Mackellar and a report of Ann Eckerman dated June 2000. Those documents indicate that land in respect of which the Kooma people assert some interest includes the Part A land near Bollon. 4 The Kooma people themselves have made a separate application under the Act. However, that application is limited to specific parcels and is not what might be characterised as a "whole of country" claim. There is no overlap between the parcels that are the subject of that application and any of the Part A land. However, I am informed that it is possible that the Kooma people may decide in the reasonably near future to make a "whole of country" claim that might include some of the Part B land. 5 In the course of the hearing of the application by Queensland South today I invited counsel for Mr Wharton to make any submissions that he wished to make, notwithstanding that he is not a party. Counsel was in Court because the proceedings relating to Part B land are also listed for directions before me today. Counsel for Mr Wharton indicated that he has received instructions from Mr Wharton to make an application to be rejoined as a party to this proceeding, relating to the part A land. 6 It may be that existing authority granted to Mr Wharton by the Kooma people would be sufficient to enable such an application to be rejoined to be made. However, it would not be appropriate to entertain such an application for rejoinder under s 84(5) without formal notice. Any question concerning Mr Wharton's authority should be resolved in any event. 7 On the other hand, it appears to me to be desirable to consider any application on behalf of the Kooma people before resolving the application before me on behalf of Queensland South. It seems to me, therefore, that it would be appropriate for directions to be given for any formal application on behalf of the Kooma people to be made and to defer determining the question of the joinder of Queensland South until that matter has been resolved. 8 I consider that that course is appropriate, having regard to the nature of this proceeding. As I have said on a previous occasion, these proceedings are in the nature of real proceedings, where it is incumbent upon the Court to satisfy itself that, by making an order, which in a sense is effective against all the world, no interested party will be adversely affected without at least having the opportunity of being heard. I am also troubled by the question of whether or not I have power to join Queensland South as a party at this stage. It is desirable that I express those doubts since they are a significant part of my reasoning in taking the course that I propose to take. 9 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 application to the persons specified in s 66(3)(a). Those persons include the following: "(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and …… (vii) if the Registrar considers it appropriate in relation to the person -- any person whose interests may be affected by a determination in relation to the application." 10 Section 84(2) provides that an applicant is a party to proceedings. Section 84(3) also provides that another person is a party to proceedings if: "(a) (i) the person is covered by paragraph 66(3)(a); (ii) the person claims to hold native title in relation to land or water in the areas covered by the application; (iii) the person's interests might be affected by a determination in the proceeding; and (b) The person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding." 11 Notice under s 66 was given to Queensland South has expired. No notification was given by or on behalf of Queensland South pursuant to s 84(3)(b). No application has been made to extend the time for giving such a notification, although such an application was suggested by senior counsel appearing for Queensland South. At present I am not satisfied that there is any power for the Court to extend the time, although there has been no argument on that question. 12 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 is in the following terms: "(5) The Federal Court may at any time 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." 13 Senior counsel for Queensland South advanced arguments in support of his contention that Queensland South is a person whose interests may be affected by the determination in this proceeding. It is common ground that Queensland South is a representative aboriginal body within the meaning of Part 11 of the Act. That is to say it has been recognised as such a body pursuant to Division 2 of Part 11. Under s 203AH such recognition may be withdrawn. Section 203AI specifies matters to which the Minister must have regard in making such a decision. They include failure to perform satisfactorily certain of the functions of a representative body. 14 The functions of a representative body are specified in s 203B, which is contained in Division 3 of Part 11 of the Act. Those functions include: "the facilitation and assistance functions referred to in sections 203BB; the dispute resolution functions referred to in section 203BF; the notification functions referred to in section 203BG; the agreement making function referred to in section 203BH; the functions referred to in section 203BJ." 15 Those functions 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. It is common ground that Queensland South is the representative body for the area that includes the Part A land. However, it does not appear to have identified the Kooma people as persons who may hold native title in the Part a land. 16 I have significant reservations as to whether the duty of Queensland South to perform functions referred to in s 203B constitutes an interest that may be affected by a determination in this proceeding. 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). The Act evinces a policy that, if the persons named within s 84(3) does not notify the Court, then it is only a more limited class of persons who may be joined as parties pursuant to s 84(5), namely only persons whose interests may be affected. 17 As I have indicated, the persons who may notify the Court pursuant to s 84(3) include both representative bodies and persons whose interests may be affected. Thus the Act draws a clear distinction between representative bodies on the one hand, and persons whose interests may be affected on the other. That distinction is drawn clearly within s 84(3)(a) and within s 66(3)(a). Indeed, if the contentions advanced on behalf of Queensland South were correct it would appear to follow that s 66(3)(a)(vii) would be otiose. That is to say, if a representative body having the functions referred to in s 203B is a person whose interests may be affected by a determination s 66(3)(a)(vii) would have no work to do at all. Section 66(3)(a)(iii) requires that the appropriate representative body be notified in any event. Section 66(3)(a)(vii) on the other hand indicates that notice is to be given to a person whose interests may be affected only if the Registrar considers it appropriate in relation to that person. For those reasons I have serious reservations as to whether I have power to accede to the application. 18 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. The purpose for joinder of Queensland South would be to look after the interest of the Kooma People. If I am satisfied that their interests would otherwise be represented then there would be no need for me to accede to Queensland South's application, even if I had power to do so. 19 Accordingly, I propose to stand the motion over to enable an application to be made by or on behalf of the Kooma people if they are so advised. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.