Logan J
In this matter the Court considered an application by Shereene Currie and others on behalf of the Butchulla People (the Butchulla applicant) who claimed that their interests would be directly affected by the outcome of an upcoming special case of the Bar-Barrum People and sought leave to intervene in the Bar-Barrum proceedings.
The Bar-Burrum People's special case would consider 3 questions:
Whether military orders made under the National Security General Regulations (Regulations) purported to effect an acquisition of the property of the Bar-Barrum People otherwise than on just terms contrary to s 51(xxxi) of the Constitution;
If yes, whether the Regulations underpinning the Military Orders constitute “past acts” under the Native Title Act 1993 (Cth) and, if so, whether those past acts were validated under the NTA; and
Whether making the Military Orders extinguished native title rights and, if not, whether being in occupation pursuant to the Military Orders, extinguished native title rights and interests.
The Butchulla applicant’s matter concerns land on Fraser Island that was also taken by military order for use as a commando school during the Second World War. The Butchulla applicant proposed that any judicially determined result in the special case would apply to the Butchulla applicant's native title proceedings (subject to a right of appeal from any adverse finding).
The Bar-Barrum People supported the intervention of the Butchulla applicant, provided this would not result in a delay or adjournment. The Commonwealth took a similar position but questioned whether the orders binding the Burchulla applicant to any judicial determination could or should be made. The State of Queensland opposed the application.
Reasoning
Logan J found that the power to state a case formed part of the Federal Court's appellate jurisdiction and the Federal Court's rules require an intervener's contribution to be useful and different and not unreasonably interfere with the conduct of the appeal.
The Court refused to grant leave to intervene. His Honour concluded that the Butchulla applicant had only an indirect interest in the outcome of the Bar-Barrum special case, being affected by any precedent created.
His Honour also considered that the Butchulla applicant’s contribution would not be ‘useful’ because all possible permutations in relation to the special case questions would be addressed by competently-represented parties or existing interveners.
Another reason provided by Justice Logan for refusing the Butchulla application was that the Northern Territory had decided to intervene, as was its right, and the intervention of a fourth party would result in the hearing of the case being extended.
By dismissing the application on these grounds, the Court did not have to consider whether it could or should make an order that any judicially determined result would apply to the Butchulla People’s matter.