Jagot J
In this matter, Jagot J ordered:
Queensland South Native Title Services (QSNTS) and the Wongkumara People be joined as respondents to the proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA);
the application for a determination of native title be struck out pursuant to s 84C of the NTA;
the application for a determination of native title be summarily dismissed both as an abuse of process and
due to the applicants having no reasonable prospect of successfully prosecuting the proceeding within the meaning of s 31A(2) of the Federal Court of Australia Act 1976 (Cth);
the applicants file and serve any written submissions and evidence in support as to why costs should not be ordered against them within fourteen days pursuant to s 85A of the NTA; and
the applicants in QUD 52 of 2008 (the Wongkumara proceeding) and QSNTS, being respondents to this proceeding, file and serve and written submissions and evidence in reply in respect of costs within fourteen days.
Her Honour found that the application for a determination of native title did not comply with s 61 of the NTA because all of the applicants had not been authorised by all of the persons in the native title claim group and therefore the proceeding was liable to be struck out under s 84C(1) of the NTA. After considering the need for due prosecution of the application and the interests of justice in accordance with s 84D of the NTA, her Honour ordered that the defect in authorisation could not be permitted to continue.
The native title determination application on behalf of the Kungardutyi Punthamara People was filed on 4 November 2016. The respondents were the State of Queensland, and following an application by joinder granted by her Honour, Queensland South Native Title Services (QSNTS) and Clancy John McKellar and others behalf of the Wongkumara People.
The authorisation issue
Her Honour found that the Kungardutyi Punthamara application was not properly authorised by all members of the native title group in accordance with s 251B of the NTA and it did not meet the requirements of s 61(1). Her Honour found the notice for the meeting to authorise the Kungardutyi Punthamara application was incapable of resulting in authorisation from all of the persons who, according to traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Further, the notice was incapable of resulting in authorisation by a group that was likely to be representative of the views of the whole of the native title claim or being likely to provide all of the members of the native title claim group with a reasonable opportunity to decide whether to attend the meeting and participate in its deliberations. See Reeves J Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373.
Her Honour further observed that it is necessary for a notice of a meeting for the purpose of authorising a native title claim to provide enough information to make potential members of the group aware of their potential membership.
Her Honour found that the Kungardutyi Punthamara people are part only of a wider regional society that includes the descendants of a number of ancestors identified in the Wongkumara application. At [34], her Honour stated that the ‘Prevailing orthodoxy is that a mere sub set of the persons who, according to their traditional laws and customs, hold the common or group rights and interest comprising the particular native title claimed cannot authorise the making of a native title claim because they cannot by definition comprise all such persons’. See Risk v National Native Title Tribunal [2010] FCA 1589 at [29]-[30].
Her Honour also observed that it may be accepted that a part or a sub-set of a traditional society or community may be able to establish that the relevant part or sub-set has rights and interests possessed in relation to an area of land under the traditional laws and customs observed by a larger society (Aplin on behalf of the Waanyi Peoples v Queensland (2004) 207 ALR 539), but that this was not the position of the Kungardutyi Punthamara applicants. Her Honour found that the defect in authorisation in the Kungardutyi Punthamara application involved a matter of substance not of form and it would be contrary to the interests of justice to allow the application to proceed.
The abuse of process issue
Her Honour found that the Kungardutyi Punthamara application sought to re-litigate an issue already determined in earlier proceedings and that in itself constitutes an abuse of process. Jagot J characterised the application as vexatious and oppressive to QSNTS and the Wongkumara applicants.
No reasonable prospects for success
Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) requires a practical judgment by the Federal Court as to whether the applicant has more than a fanciful prospect of success. Her Honour concluded that the Kungardutyi Punthamara had no reasonable prospects of success because the application was not authorised as required and it was not in the interests of justice for the proceedings to be heard despite the lack of proper authorisation. Her Honour ordered that the application had no reasonable prospects of success because it involves an abuse of process which ought not to be permitted.